Recently, 9News featured a story about residents residing in commuter vans in Eagle County to offset the high cost of living. The story notes that some residents who live and work in Colorado’s mountain ski communities live in their automobiles, such as those available at Dave & Matt Vans (dmvans.com).

But what happens when a person living in the van decides to drink alcohol or use marijuana and becomes impaired? Could that person legally be charged with DUI?

The answer may not be as simple as whether the person was moving the vehicle or on a public road. First, the legal definition of “driving” is broader than one would thing. Also, there is no exception that the vehicle must be in a public place or on a road to be involved in a DUI. Simply put, the mere presence of a person impaired by alcohol or drugs in a motor vehicle can lead to a DUI charge.

Defining “Driving” in Colorado

There is no specific definition of the word “drive” or “drove” in the Colorado Revised Statutes. Because of this, courts look to caselaw, which consists of past court decisions to interpret law and definitions. Pursuant to C.R.S. § 42-1-102(27) the term driver is defined as “every person, including a minor driver under the age of twenty-one years, who drives or is in actual physical control of a vehicle.”

The Colorado Supreme Court first applied the definition of driver to drive in Brewer v. Motor Vehicle Division, 720 P.2d 564, 567 (Colo. 1986). Here, the Court addressed whether a motorist found asleep in a vehicle parked on a public street with the motor running “drove a vehicle.” The court held that the motorist was in actual physical control of the motor vehicle, and that this proof was sufficient to establish that the motorist “drove.”

After Brewer, courts emphasized whether a vehicle was running to establish that a driver had control over the motor vehicle. In Dep’t of Revenue v. Warman, 763 P.2d 558 (Colo. 1988), the court focused on the running engine, and held “[a] person who places himself behind the steering wheel of a motor vehicle with its engine running is in actual physical control of the vehicle… because the vehicle can be put in motion by minimal physical activity, even if the activity might be unintentional.”

In Caple v. Dep’t. of Revenue, 804 P.2d 873 (Colo. App. 1990), the court expanded the holding in Warman to include instances when a motorist is in a motor vehicle with the engine off, but with the keys in the ignition in the “on” position. The court reasoned that a person could be driving because of the little amount of effort required to turn the vehicle on and put it in motion. The court further held that “with an intoxicated person at the wheel, a car could quickly become a dangerous instrumentality.” Even though the defendant’s engine was not running, the fact that it could be easily turned on and put in motion was significant.

Finally, in People v. Swain, 959 P.2d 426 (Colo. 1998), a defendant was found sleeping in his vehicle on the side of an exit ramp with the engine off, but with the keys in the ignition and music playing. The court held that these facts were sufficient to establish that this defendant “drove” a vehicle within the meaning of the DUI statute. Here the Court established a totality-of-the-circumstances test to be used to determine when a person may be considered to be in actual physical control of a vehicle. The Swain case led to a common instruction given by judges or juries in DUI cases where a person may be impaired and present in a parked vehicle. The Swain instruction reads as follows:

In Colorado, a person “drove” if he or she was in actual physical control of a motor vehicle.

“Actual physical control” is present when a person exercises bodily influence or direction over a motor vehicle; which is to be decided by a totality of the circumstances.

Factors you may consider in deciding whether or not a person was in actual physical control of a motor vehicle, include, but are not limited to the following:

1. Where the vehicle is found;
2. Where in the vehicle the person was found;
3. Whether or not the keys were in the motor vehicle’s ignition;
4. Whether or not the motor vehicle was running;
5. Any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based on your everyday experience.

No one factor listed above definitively decides whether or not a person was in actual physical control of a motor vehicle.

In 2008, the Colorado Court of Appeals in People v. VanMatre, 190 P.3d 770, expanded the holding in Swain by approving of the following additional factors that may be considered:

1. 1. the vehicle’s operability;
   2. whether the defendant had the apparent ability to start the vehicle;
   3. whether the defendant was conscious;
   4. whether the heater or air conditioner was running;
   5. whether the windows were up or down.

In VanMatre, the Court held the defendant was properly convicted of DUI when he had been sipping a forty-ounce beer while turning the key to the ignition of a stalled vehicle that had no gas and a dead battery.

Despite the above cases, when there is evidence that a person is in a vehicle for a reason other than to move it, there could be a valid defense. At least one Colorado court case, Dept. of Revenue v. Lounsbury, 743 P.2d 23, 27 (Colo. 1987), acknowledged that intent to drive is a significant factor in determining whether an individual drove a motor vehicle.

All things considered, a person who elects to live in a van or other automobile should be very careful if consuming alcohol or drugs. Police are patrolling for DUIs, and it is possible to be charged in Colorado by merely being present in a motor vehicle while impaired, despite where the vehicle is located or what the person is doing in the vehicle.