*This article was updated in august 2021.*
You might be surprised where you can and cannot be charged with a DUI – and yes, you can be arrested for a DUI even if you are outside of the vehicle. An officer still must have probable cause that you were driving while under the influence to arrest you. Without probable cause, the state would have difficulty convicting you of a DUI, whether you were in or outside of the vehicle.
Drivers can be arrested sitting in their car even if the vehicle is not running, trying to enter their car, or after they have exited the vehicle for a DUI. Therefore, do not assume you need to be behind the wheel with the engine running to get arrested. Colorado Courts have found that having one’s keys in the ignition may be sufficient to demonstrate operation or control of a motor vehicle even if the vehicle is not running.
The Requirements to Be Arrested and Convicted for Drunken Driving in Colorado
In Colorado, you drive while intoxicated if your blood alcohol concentration (BAC) is 0.08 percent or higher. Furthermore, the state can only convict you if they can prove the following beyond a reasonable doubt:
- You were or had driven a motor vehicle while intoxicated. The state must show that you were driving your vehicle while intoxicated at the time of your arrest. You will notice you do not have to be behind the wheel to get a DUI.
- You were under the influence of drugs or alcohol. As long as the state can prove you were under the influence of drugs or alcohol and the concentration was high enough to demonstrate that you were substantially incapable of safely operating your motor vehicle, you could be convicted of a DUI.
Driving is part of the DUI definition, but you do not have to drive the vehicle to get a DUI. Many residents of Colorado had found themselves arrested for a DUI when they were not even driving their car or in the car at the time.
When Can Law Enforcement Arrest You for a DUI Away from the Vehicle?
So, now that you know you don’t have to be behind the wheel, when can law enforcement legally arrest you for a DUI without driving?
An officer could not just stop you walking down the street or even walking from a bar to your vehicle and arrest you for a DUI. Instead, they need probable cause. For example, you are walking to your vehicle from the bar, but you are stumbling, dropping your keys, and obviously intoxicated. You unlock your car, and an officer stops you, requesting that you do a field sobriety test. In this case, the officer could claim they had probable cause to stop you because you were acting intoxicated and getting ready to enter the vehicle – which they would say was your intent to drive under the influence.
In another example, you are leaving that same bar, but you are walking fine, have no coordination issues, and go to your vehicle. You unlock the door and get in, but an officer stops you and requests a field sobriety test. In this case, the officer had no probable cause to assume you were under the influence, let alone about to drive while under the influence. Therefore, it would be difficult for the officer or the state to prove their case.
Could an Officer Arrest You after You Park and Walk Away from the Vehicle?
In some cases, yes, an officer could. For example, the officer was already following you under the suspicion that you were intoxicated. You park your vehicle and walk up to your home, but the officer stops you. Because the officer followed you and knew you were driving under the influence, they could arrest you for a DUI, even though you are not in the car.
Looking at the Circumstances
The court will look at the entire circumstance of your arrest, including where you were at the time, where your vehicle was, if you were in possession of your keys and if the officer physically saw you driving the vehicle. All of these are considered when the judge decides if you are guilty of a DUI beyond a reasonable doubt.
Even if you are lawfully arrested for a DUI, you must also realize that that doesn’t mean you are without options. Instead, you will need a defense strategy that fights back against being arrested for a DUI, even when you are outside of your car.
Can You Defend Yourself against a DUI Arrest When You Were Not in the Vehicle?
You can still defend yourself against a DUI when you are arrested outside of your vehicle. However, depending on the circumstances of your arrest, doing so may be difficult. Regardless, you need a criminal defense attorney with experience handling these types of DUI cases.
A DUI, even as your first offense, can create long-term negative consequences. Not only will you run the risk of having a permanent criminal record, but you can still serve time in jail, pay court fines and fees, and a DUI on your record may impact your current housing, employment, and even family situation. Furthermore, you will have the stigma of someone with a “drinking problem” or a criminal record.
The only way to prevent yourself from facing the long-term harsh consequences of a DUI is to have an attorney there fighting for the best possible outcome. The sooner you get a criminal defense attorney involved, the better the outcome might be in your case. An attorney may get the charges dismissed or negotiate a better plea deal with the prosecution, so never make a deal without speaking to an attorney first.
To explore your legal options, contact attorney Mark S. Rubinstein, P.C., immediately. The sooner you hire an attorney, the better for your case. Exercise your right to remain silent and call us directly to schedule a no-obligation case evaluation. You can also request more information about a DUI defense online.