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Actual Physical Control

DUI Defense and Actual Physical Control

DUI Defense Attorney Lain Aaron Lawrence Nov. 20, 2022

What is the legal definition of Driving Under the Influence in Colorado?

Driving under the influence, or DUI, is the operation of a motor vehicle while your ability to drive is substantially impaired. Impairment can be caused by drugs, alcohol, or a combination of both. You can find the actual legal definition of a DUI at C.R.S. 42-4-1301.

Contained in the name of DUI is driving, and driving is an essential element of the crime. However, the term driving has a much broader meaning under Colorado DUI law than the commonly understood definition. 

Driving includes the actual act of driving, and it also includes being in actual physical control of a motor vehicle. Most DUI cases involve misdemeanor cases, but it is possible to be charged with a felony dui in Colorado. It is always important to hire a dui lawyer when dealing with a dui charge.

This issue can be applied to DUI, DWAI, or aDUID.


People v. Swain is the Colorado case that guides courts in determining actual physical control. Actual physical control is present when a person exercises bodily influence or direction over a motor vehicle. 

This is to be decided by a totality of the circumstances. A totality of the circumstances means a court or jury should look at everything. One fact should not be considered more important than any other. Facts are not viewed in a vacuum and should be looked at an interconnected web.

The Swain Court has provided some factors to consider. The court developed factors to consider. These include the following:

a.      Whether the vehicle was found;

b.      Where in the vehicle the person was found;

c.      Whether or not the keys were in the motor vehicle’s ignition.

d.      Whether or not the motor vehicle was running; and

e.      Any other factor which tends to indicate that the person exercised bodily influence over a motor vehicle based on everyday experience. 

A jury would be instructed that no one facto listed above definitively decides whether a person was in actual physical control. However, most juries will place considerable weight on whether the car was running or not.

As the Swain Court indicated as well, the list is not exhaustive. A DUI defense attorney should be able to properly craft other factors for a jury to consider when debating actual physical control. 

Location of the vehicle is an important factor. Colorado is cold, and people will routinely sit in their vehicles in cold weather conditions. A common theme seen when dealing with this issue is citizens will routinely turn their vehicles on to use the heaters. Depending on where this occurs could impact a jury’s decision.

Secondarily, the intent of a driver could be important. A DUI offense doesn’t have a mental state. A defendant does not have to intend to drive under the influence. 

Adding on to the hypothetical above, a defendant could warm themselves while waiting on a Uber or Lyft. Proof of an ordered ride share could be helpful. It could help to establish that a defendant was not driving or going to drive.


In criminal defense cases, the prosecution can present direct evidence or circumstantial evidence. Direct evidence is direct proof of fact, and circumstantial evidence is indirect proof of fact.

An example of direct evidence would be looking outside and seeing that it is raining. You know for sure that it is raining. Circumstantial evidence would be seeing people walking around in rain coasts with wet umbrellas. You could then infer that it is raining outside.

Direct evidence in a DUI case is officer’s observations. The most important observations would be the observable driving of the defendant. Again, the definition of DUI is the operation of a motor vehicle while the defendant’s ability to drive is substantially impaired. Bad driving is direct evidence of impaired driving.

An actual physical control case does not have this kind of direct evidence. By its nature, cops will be responding or approaching a vehicle that is not in motion. They will have no prior interactions with the vehicle and have no direct knowledge of the driving habits.

There are other circumstantial facts that can be witnesses though depending on the facts of the case. One of the biggest circumstantial questions that arise deals with the location of a vehicle. 

A vehicle parked outside a bar is substantially different from a vehicle parked on a country road in the middle of nowhere. In the first example, a defendant could arguably get to and from the vehicle while drinking at the bar. 

The second would not have a source for the alcohol. Cops or prosecutors will argue the defendant would have driven while under the influence to get their vehicle to the remote location.

General police procedure is to ask questions to provide circumstantial evidence. Law enforcement investigation a DUI will employ standard forms and questions. Their forms will involve questions concerning drug or alcohol use.

This will include questions about the amount of alcohol consumed and when the last alcohol was drunk. They will also ask where it was consumed, where the defendant was going, and so forth. Answering these questions will typically hurt a defendant. The answers will provide prosecutors evidence to use against them.


While a DUI may seem simple, it can get complicated quickly. No two DUI cases are the same. Each case and each defendant require a DUI attorney to tailor a defense to their case and goals.

If you are charged with a DUI or DWAI offense is Aurora or the Denver Metro Area, request a consultation today. We are open during regular business hours, and we will stay late and be available on the weekends if necessary.

Schedule a free consultation with a DUI Defense attorney from the Lawrence Law Firm. We are ready, willing, and able to represent you. Our firm charges flat fees, but we also provide flexible payments plans. Your financial situation should not compromise your legal defenses.

Request a consultation today with our DUI Lawyer.