Here’s something most people don’t realize until they’re sitting in the back of a patrol car: Colorado’s DUI law is broader than “driving” and broader than “drunk.” You can be charged without leaving your driveway, without putting the car in gear, and without a sip of alcohol in your system.
I’ve defended hundreds of DUI cases in Colorado Springs, and the question I hear more than any other isn’t “How much trouble am I in?” It’s some version of, “Can they really charge me with this?”
Usually, the answer is yes — they can charge you. Whether they can convict you is a different question, and it almost always comes down to facts the officer didn’t write down, body camera footage the prosecutor doesn’t want to play, or assumptions the report treats as obvious.
A quick map before the questions. Under C.R.S. § 42-4-1301, DUI means alcohol or drugs affected you to the point that you were substantially incapable of safely operating a vehicle. DWAI is the lower-bar cousin, alcohol or drugs affected you “to the slightest degree” so that you’re less able than usual to drive safely.
DUI per se is the straightforward numbers version: 0.08 BAC or more at the time of driving or within two hours after the time of drive.
And in People v. Swain, 959 P.2d 426 (Colo. 1998), the Colorado Supreme Court held that “drove” in the DUI statute means actual physical control of a vehicle — not necessarily movement.
That last point does a lot of work in the questions below.
1. Can I get a DUI in Colorado if I’m Sleeping in My Car?
Short answer: Yes, but the facts have to be there, and sometimes they aren’t.
The state doesn’t have to prove the car was moving. Under Swain, “drove” means actual physical control, (we sometimes call this A.P.C. for short) determined by the totality of the circumstances. Courts look at things like:
- Where the vehicle was parked
- Whether you were in the driver’s seat
- Whether the keys were in the ignition
- Whether the engine was running
- Whether the lights were on
- Whether the vehicle was capable of moving
- Whether there’s evidence you drove before police arrived
So yes, you can absolutely be charged for sleeping it off. But the smartest thing a person can do, sleeping instead of driving, doesn’t automatically become a crime just because an officer found you in a vehicle. A good defense pulls every one of those factors apart.
Important note: sleeping in your car is still safer than driving drunk. If you’re going to do it, the back seat with the keys somewhere outside the ignition is a much harder case for the state than the driver’s seat, keys in, engine warm. The best decision is to get an Uber or a designated driver.
But if you are resting in your car, remember that the prosecution will use the Swain factors to try to show you were in actual physical control.
I have handled numerous cases that revolved around whether a driver was in control of their vehicle. These are very defensible cases when the facts are on our side.
Fact pattern: My client was asleep in his car in his girlfriend’s driveway. Engine running, car is in park, and he is in the driver’s seat. As he fell asleep, his head rested on the horn, and the neighbor’s called the cops from the horn blaring for five minutes. “Driving” Verdict? Was he in A.P.C.?
What should he have done differently to make his case stronger?
2. Can I get a DUI in Colorado if My Car is Parked?
Short answer: Yes, but a parked-car case can be a defense lawyer’s favorite kind of case.
Again, the statute doesn’t require movement. It requires “driving,” which Colorado courts treat as actual physical control.
A parked-car case is weaker for the prosecution when:
- The engine was off
- The keys weren’t in the ignition
- The person was not in the driver’s seat
- The vehicle was legally parked
- There’s no proof of recent driving
- The person was using the vehicle as shelter rather than transportation
A parked-car case is stronger for the prosecution when the person was behind the wheel, the engine was running, the lights were on, or there’s evidence of recent driving, skid marks, a still-warm exhaust, a witness who saw the vehicle pull in.
In other words, the same fact pattern can produce a very different case depending on details the police report often glosses over.
I can tell you from experience, it matters a lot where the car is parked. Is it in the driveway? A valid parking spot? Or on the side of the highway? Aliens didn’t drop the car off there; someone had to drive it there. This can often be a big sticking point for jurors.
Fact pattern: A few years ago, I had a case where a young soldier left a club on Tejon, ordered an Uber, and got in his car in the parking lot. He turned the power on in his car to listen to the radio and turn on the heater, but he didn’t start the engine.
He was in the driver’s seat while he waited. Police quickly knocked on his window and charged him with a DUI. What’s the verdict? Was he in actual physical control?
3. Can I get a DUI in Colorado if the Officer Didn’t See Me Driving?
Short answer: Yes, but the state still has to prove driving or actual physical control.
An officer doesn’t have to personally watch the car move. The prosecution can build the case on circumstantial evidence:
- Crash evidence
- Witness statements
- Body camera footage
- Where the person was found
- Keys, ignition, lights, and engine status
- Statements or admissions by the driver
- Vehicle damage
- Location of the vehicle
- Timing of when alcohol or drugs were consumed
That last one, timing, is where a lot of cases fall apart. If you drank after you stopped driving, the state has a serious proof problem. This is often referred to as the “drank after driving defense”.
People v. Valdez, 2014 COA 125, is the case to know here. Police found Valdez passed out in the driver’s seat with his feet near the pedals, keys in the ignition, and the lights on.
He even tried to start the vehicle when officers woke him up. The Court of Appeals upheld the conviction and also clarified that the prosecution doesn’t have to prove operability beyond a reasonable doubt. Useful case to read whenever the officer didn’t actually witness driving.
Fact pattern: My client failed to navigate a turn and drove his car into the ditch. He was about half a mile from home, so he walked back.
He went to his workshop and started drinking because he was upset about the crash, and didn’t want to tell his wife before he got a little liquid courage. A neighbor called the police who contacted him in the workshop and noticed he smelled heavily of alcohol and had admitted to driving.
Verdict?
This case actually went to trial and he was found not guilty. I spoke with the Jury afterwards, and they agreed there wasn’t enough evidence to prove he was drinking before he drove the vehicle.
4. Can I get a DUI in Colorado if I’m Under the Legal Limit?
Short answer: Yes. “Under the limit” is one of the most common misconceptions in Colorado DUI law.
First, we have to ask “what limit”? Colorado doesn’t have one DUI offense. It has DUI, DUI per se, and DWAI. DUI per se is the 0.08 floor. DWAI applies at lower levels if alcohol or drugs affected you to the “slightest degree.”
The BAC numbers create the following statutory presumptions and inferences:
- 0.05 or less – presumption you were not under the influence and not impaired by alcohol.
- Above 0.05 but less than 0.08 – permissible inference of impairment.
- 0.08 or more – permissible inference of being under the influence.
That middle band — 0.05 to 0.079 — is where DWAI cases live. And in practice, prosecutors will charge a DWAI based on a 0.06 BAC plus the standard officer narrative: red and watery eyes, odor of alcohol, slurred speech, swaying on the heel-to-toe. None of which is hard to write into a report.
A blood or breath number alone doesn’t decide the case. The defense has plenty to work with below 0.08. There is no legal limit for most drugs.
So, drugs like cocaine, meth, shrooms, or even prescription meds are where the amount of the substance in a person’s system can be a major issue at trial. Keep in mind, if you only have alcohol on board, you get the presumption that you are not impaired below a .05.
I have handled quite a few cases where the blood work comes back under a .05. Remember, blood can take months to come back from the lab. Breath results are immediate. (In breath cases, if it’s under a .05, a smart cop won’t charge a DUI) When a DA sees the blood came back below a .05, they will commonly dismiss the DUI charges.
However, if there are other charges like speeding or careless driving, they will often pursue the remaining counts.
5. Can I Get a DUI in Colorado If I Only Used Marijuana?
Short answer: Yes, and the 5-nanogram rule is not what people think it is.
C.R.S. § 42-4-1301 applies to alcohol, “one or more drugs,” or any combination. Marijuana counts.
Colorado law gives juries a permissible inference: if your blood contains 5 nanograms or more of delta-9 THC per milliliter (whole blood), the jury may infer you were under the influence of one or more drugs.
That word, “permissible”, matters. It is not a per se limit like the 0.08 alcohol number. The jury is allowed to draw that inference, but they’re not required to. The prosecution still has to prove actual impairment at the time of driving.
This is where marijuana DUI defense gets interesting, especially for chronic users and medical patients. THC can sit in your system for days after the impairment is gone. A 7 ng/mL blood result on a Wednesday might mean you smoked on Sunday. The number is one data point, not a verdict.
Blood tests can distinguish between active and inactive THC in a driver’s system. A person may have a ton of inactive THC-COOH (non-active carboxy byproduct), and no active THC Delta-9 in their system.
The COOH tells us they smoked marijuana, but it doesn’t tell us whether they were impaired or high at the time. They may have smoked 2 weeks ago and still have the carboxy form in their system.
6. Can I Get a DUI in Colorado If Marijuana Is Legal?
Short answer: Yes. Legal to use, illegal to drive impaired.
Colorado’s DUI statute covers alcohol, drugs, or both. And the statute is explicit: being lawfully entitled to use a drug, including medical marijuana under the Colorado Constitution, is not a defense to DUI or DWAI.
Legalization changed where you could buy it. It didn’t change what you could do behind the wheel after using it.
7. Can I Get a DUI in Colorado If I Have a Medical Marijuana Card?
Short answer: Yes. A red card doesn’t shield you from a DUI charge.
C.R.S. § 42-4-1301 explicitly says that being entitled to use a drug under Colorado law, including medical marijuana, does not constitute a defense to DUI or DWAI.
But “no defense” doesn’t mean “automatic conviction.” A medical marijuana DUI case still raises every defense issue a regular marijuana DUI raises, plus a few more:
- Was the driver actually impaired, or just over the inference threshold?
- Did the officer have probable cause?
- Was the blood draw lawful?
- Was the blood sample collected and stored correctly?
- Can the state prove impairment at the time of driving, not hours later at the jail?
The card doesn’t help. Tolerance science, chain-of-custody questions, and the difference between presence and impairment do. Legal to smoke does not mean legal to drive while high.
8. Can I Get a DUI in Colorado If I Took Prescription Medication?
Short answer: Yes, and these cases come up more than people expect.
“One or more drugs” under the statute includes prescription medication. And the same rule applies: lawful entitlement to use a drug is not a defense.
Prescription DUI cases regularly involve:
- Opioids (oxycodone, hydrocodone, tramadol)
- Benzodiazepines (Xanax, Klonopin, Valium)
- Sleep medication (Ambien, Lunesta)
- Muscle relaxers (cyclobenzaprine, carisoprodol)
- ADHD medication (Adderall, Ritalin)
- Antidepressants and anti-anxiety medication
- Any of the above mixed with even a small amount of alcohol
The question isn’t whether the prescription is valid. It’s whether the medication affected your ability to drive safely. A valid prescription explains why the drug is in your blood.
It doesn’t end the case. I have handled many Rx DUI cases. Some prescription drugs can affect people in ways that make it incredibly dangerous to operate a motor vehicle. The Rx drug I see the most? Ambien or other sleeping pills.
9. Can I Get a DUI in Colorado if I Blow 0.00?
Short answer: Yes, but a 0.00 can be one of the best pieces of defense evidence you can have.
A breath test measures alcohol. A 0.00 result rules out alcohol impairment, it doesn’t rule out drug impairment.
What typically happens next is the officer pivots: a drug recognition evaluator gets called in, a blood draw gets requested, the report shifts from “smell of alcohol” to “indicia of marijuana use” or “indicia of stimulant use.”
That pivot is also the opening for the defense. Every observation the officer made, the bloodshot eyes, the swaying, the slowed responses, was originally attributed to alcohol.
A 0.00 breath result tells you those observations were wrong about alcohol. That should make a jury wonder what else the observations are wrong about.
A 0.00 doesn’t end the case. It does change it dramatically.
10. Can I get a DUI in Colorado in My Own Driveway or On Private Property?
Short answer: Yes. Colorado’s DUI statute doesn’t stop at the curb.
C.R.S. § 42-4-103(2)(b) is the provision that does the work here. It says that the DUI-related sections (42-4-1301 through 42-4-1303) apply “upon streets and highways and elsewhere throughout the state.”
That “elsewhere” language matters. A driveway, a parking lot, a private road, an apartment complex, a ranch road, all of them are fair game for a DUI charge if the state can prove the rest of the elements.
That said, private property still matters to the defense. It can shape:
- Whether the officer had lawful contact in the first place
- Whether there was actual driving versus just sitting
- Whether the person posed a public safety risk
- Whether the officer had reasonable suspicion or probable cause
- Whether the facts support negotiating the charge down or out
I’ve had cases where the location alone didn’t beat the charge, but combined with no-witness driving, an off engine, and the keys not in the ignition, it became the case for dismissal.
Even if the DA isn’t willing to outright dismiss the case, in many situations, the DA is willing to plead the case way down. Maybe they will offer a deferred sentence or a traffic infraction to resolve the matter, because they see the weaknesses in their case.
The Rules Behind the Questions
A few principles tie all ten of these together.
- Movement is not required. Under People v. Swain, “drove” means actual physical control, decided on the totality of the circumstances.
- Inoperable doesn’t necessarily mean innocent. In People v. VanMatre, 190 P.3d 770 (Colo. App. 2008), cited in Valdez, the court held that a defendant could be convicted of DUI while turning the key in a car that had no gas and a dead battery. When there’s evidence raising operability concerns, the jury must be properly instructed on whether the vehicle was operable, reasonably capable of being rendered operable, in motion, or at risk of being put in motion.
- DUI covers alcohol, drugs, or both. C.R.S. § 42-4-1301 applies to alcohol, “one or more drugs,” or any combination. That includes marijuana, prescription medication, and combinations of the two.
- A lawful prescription is not a defense. Colorado law explicitly says lawful entitlement to use a drug, including medical marijuana, is not a defense to DUI or DWAI.
- Private property is not a sanctuary. C.R.S. § 42-4-103 extends the DUI statute “elsewhere throughout the state,” not just to public roads.
When These Cases Can Be Defended
The headline of this article could just as easily be: “Yes, you can be charged, and no, that doesn’t mean you’ll be convicted.”
These cases turn on facts, not formulas. A defense lawyer should be looking at:
- Whether the officer had reasonable suspicion to contact you
- Whether the officer had probable cause to arrest
- Whether you actually drove or were in actual physical control
- Whether the vehicle was operable or reasonably could be made operable
- Whether you drank or used after driving (huge for sleeping-in-car cases)
- Whether the chemical test was accurate
- Whether the state can prove impairment at the time of driving
- Whether the roadside tests were properly administered
- Whether the body camera footage matches the report (it often doesn’t)
- Whether witness statements line up with the prosecution’s theory
A parked-car DUI, a sleeping-in-the-car DUI, a marijuana DUI, a prescription-drug DUI, a 0.00-breath DUI, a private-property DUI, none of those should be treated as a foregone conclusion.
If You’re Facing a DUI in Colorado
If you’ve been charged with DUI, DWAI, or any variation of the above, you need a defense built around Colorado law and the actual facts of your case, not a plea deal handed across the table on day one.
The McDowell Law Firm defends DUI cases in Colorado Springs, El Paso County, Ft. Carson, Teller County, and surrounding Colorado courts.
Call 719-227-0022 for a free consultation.
The post Can I Get a DUI in Colorado If: 10 Questions With Answers People Don’t See Coming first appeared on McDowell Law Firm.
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