The “No Driving Defense” in Colorado DUI Cases

In this article, our Colorado criminal defense attorneys discuss:

• 1. What is the “no driving” defense?
• 2. Do the police have to see me driving?
• 3. How else can I fight DUI charges?
• 4. What are the penalties?
• Additional Reading

1. What is the “no driving” defense?

Colorado’s “no driving” defense to “driving under the influence” charges is simply that you may have been “under the influence” – but you were not driving at the time.

That you were driving is a key element in cases involving:

• DUI or DUI per se,
• DWAI,
• UDD (underage DUI),
• vehicular assault, or
• vehicular homicide.

So when the police did not actually see or record you driving, your Colorado DUI defense lawyer may be able to use the following “no driving” defenses:

• You were just taking a nap in the car.
• You were waiting to sober up and had no intention of driving until then.
• You had the engine turned on to warm up the vehicle, not to drive it.
• The car was driven by someone else who left the vehicle before the police arrived.
• The car was driven by someone else who switched places with you before the police arrived.
• You did not begin drinking or ingesting drugs until after you stopped driving.

As long as Colorado district attorneys cannot prove beyond a reasonable doubt that you were driving, the drunk driving or drugged driving charge must be dismissed.¹

2. Do the police have to see me driving?

Prosecutors have a number of tricks to get around the lack of a witness to a DUI suspect’s driving. A court will look at the “totality of the circumstances” to determine whether you had put the vehicle in motion – or you intended to do so.²

Evidence that you operated a vehicle while under the influence may include a combination of:

• Usual indicators of impairment, such as:
  • The smell of alcohol and/or marijuana;
  • Empty containers of alcohol in the car;
  • Drug paraphernalia in the car;
• Your location – such as being parked at an odd angle or being on the side of the road with the engine running;
• Your statements;
• Statements of other witnesses (either passengers in the car or outside observers);
• You were asleep with the engine running;
• You were trying to put the keys into the ignition; or
• Your motor vehicle was involved in an accident, and you were the only person at the scene.

Typical evidence prosecutors rely on to prove that you were driving includes police reports, dashcam video, traffic surveillance video, and eyewitness reports.

3. How else can I fight DUI charges?

There are many possible strategies that DUI defense attorneys use to fight drunk/drugged driving charges if the “no driving defense” is inapplicable. Five common defenses include:

1. Law enforcement lacked reasonable suspicion to pull you over (for example, you committed no traffic violation).
2. Law enforcement lacked probable cause to make the DUI arrest.
3. The police officers did not administer the field sobriety tests correctly.
4. You had a medical condition (such as GERD) that caused the breath test to return an inaccurately high BAC (blood alcohol content) result.
5. The chemical test results from the breathalyzer were unreliable because it had not been calibrated recently, or the blood tests were contaminated by the lab techs.

4. What are the penalties?

Under Colorado DUI laws, a first time DUI conviction is a misdemeanor punishable by:

• 5 days to 1 year of jail time;
• $600 to $1,000 in fines;
• 48 to 96 hours of community service; and
• 9-month driver’s license suspension.
• (If you had a BAC of at least 0.15%, you are classified as a persistent drunk driver (PDD) and sentenced as a repeat-DUI offender.)

Meanwhile, a first offense DWAI is a misdemeanor punishable by:

• 2 to 180 days in jail;
• $200 to $500 in fines;
• 24 to 48 hours of community service; and
• 8 DMV points.

Second- and third-time DUIs and DWAIs are also misdemeanors. Though they carry higher jail sentences, steeper fines, more community service hours, and a longer revocation of driving privileges.

Felony DUIs

Note that fourth-time DUIs and DWAIs – or any drunk/drugged driving accident that results in a serious injury – are class 4 felonies punishable by 2 to 6 years in Colorado State Prison and/or $2,000 to $500,000 in fines. If the accident causes a fatality, it is a class 3 felony carrying 4 to 12 years in prison and/or $3,000 to $750,000 in fines.

Underage DUIs

Finally, first-time offenses of underage drinking and driving (UDD) are class A traffic infractions. The penalty is:

• $150 in fines;
• 24 hours of community service;
• 3-month license revocation; and
• 4 DMV points

Though successive UDD convictions are class 2 traffic misdemeanors, carrying a minimum of 10 days in jail, up to $300, up to 120 hours of community service, and a 6-month license revocation.

Keeping your license

For any DUI offense, the only way you can keep your driver’s license is to win both the criminal case as well as the DMV’s express consent hearing (which is completely separate from the criminal case). Even if your license gets suspended, you may be able to resume driving with an ignition interlock device in your car.³

Additional Reading

For more information about Colorado DUI laws, refer to our related articles:

• 20 Ways to Beat a Colorado DUI or DWAI – list of the top defenses to fight drunk driving charges
• What happens if I refuse the DUI breath or blood test in Colorado? – discussion of the consequences of not consenting to take an evidentiary chemical test following your arrest
• How much is the court fine for a Colorado DUI? – outline of the monetary penalties you can expect to pay following a drunk driving conviction
• DUI of Marijuana – the laws and penalties for driving while under the influence of marijuana
• Does Colorado have a felony DUI statute – a look at when driving under the influence is prosecuted as a felony rather than a misdemeanor

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Legal References