DUI In My Driveway, Can I Get Arrested?

Categories: DUI Defense

DUI law

It seems illogical, but police can arrest you for DUI in your driveway. If you race home and park in your driveway after having a few drinks, you might think that you can avoid a Colorado DUI or DWAI charge. After all, how can a police officer arrest you on your private property? 

So you may wonder, If I get a DUI in my driveway, can I get arrested? The answer is, yes, you can. And if you do, you will need a tough and experienced Colorado DUI defense attorney to defend your case. With over two decades of experience, you can trust Colorado DUI lawyer Mark S. Rubinstein and his team with Mark S. Rubinstein, P.C, who offers aggressive representation for anyone facing a DUI or DWAI charge. Contact us today.

What Charges Can the Police Bring if They Charge Me with DUI in My Driveway?

The Colorado drunk driving statute indicates that driving under the influence of alcohol or drugs is a traffic misdemeanor. Driving under the influence means the alcohol you consume affects your ability to drive safely. In other words, the alcohol you drank substantially impairs either your ability to exercise good judgment or to have the physical and mental capacity to drive safely. 

The law includes two other ways how police could charge you after consuming alcohol and driving a vehicle. Driving at or over the legal limit of 0.08% blood alcohol content (BAC) is one way. Driving with your ability impaired (DWAI) is the other. 

DUI Per Se

The law indicates that anyone driving with a blood alcohol concentration (BAC) of 0.08% or greater is per se DUI. DUI per se means that if your BAC is .08% or more, the prosecutor does not have to prove that your ability to drive was actually impaired. The BAC of .08% or more is a crime in and of itself (per se), even in the absence of proof of actual impairment. 

However, the law also says that the person can still be charged with DUI per se if the driver’s BAC is 0.08% or greater within two hours of driving. 

The law creates an affirmative defense if the police allege the driver’s BAC was 0.08% or greater after two hours of driving. The driver can argue that they consumed alcohol after driving but during the two-hour window. Suppose the driver presents evidence at trial. The prosecutor now has the burden to prove two things beyond a reasonable doubt. They must prove that the driver operated a motor vehicle with a BAC of 0.08% or greater and that the alcohol consumed after driving did not affect the result. 


DWAI means driving after consuming alcohol or drugs, and the substances actually impair your driving ability. The alcohol or drug you consume has to impair your ability to drive by only the slightest degree to qualify for DWAI. 

This charge is more focused on actual impairment and doesn’t require a BAC reading of .08% or higher. Some people are impaired even when their BAC is .05% or thereabouts. Evidence that alcohol-impaired your ability to drive includes observations of your driving, witnesses who saw you drinking before driving, as well as the results of any chemical tests you take. 

What Does Colorado’s DUI Law Say About Getting Charged with a DUI in Your Driveway?

Colorado’s DUI law doesn’t provide people with a safe haven from drunk driving. That means the police can arrest you even if they never saw you operating your vehicle. To prove you guilty, the prosecutor has to prove that you were driving while under the influence. But if you’re in your driveway and the police arrested you, how can they say you were driving?

The police can use circumstantial evidence to prove you drove your vehicle. For instance, they could get a description of your car reported by 911 callers after an accident. Maybe they obtained your license plate number and traced your information back to the car parked in your driveway. Perhaps they even followed you home.

Some people mistakenly believe that the police cannot follow them into their driveways. Beating the police to your driveway doesn’t mean you are home free. If they have enough evidence, the police can follow you to your driveway and even go on your property without violating your rights. 

The police can knock on your door and ask to speak with you even if you got out of your car and entered your home. You certainly do not have to speak with the police, nor do you have to let them into your home to talk to you. You don’t even have to open the door for them. If the police are serious about pursuing you as a DUI suspect, then they could obtain a warrant for your arrest or search your home.

What If I’m Sleeping It Off in the Car?

Colorado’s DUI law refers to driving under the influence. Therefore, you would think the police have to catch you in the act of driving to charge you with a DUI. That is not the case. 

The law defines driving broadly. The police have to show that you had actual physical control over the car to prove the element of driving. As a result, you could face DUI charges if the police see you sleeping while in the driver’s seat with the keys anywhere near you. Even if your car ran out of gas or you needed to change a flat tire, there is enough evidence to prove that you drove the vehicle.

The police also have a right to approach your car and ask you if you are okay if they see you asleep in your car. If you have fallen asleep in your car while waiting in a parking lot or other public place, you could face DUI charges even though you were not operating the car. 

Experience You Can Trust

I have helped many people in your position in the two decades I’ve been fighting for people’s rights. I personally handle each case that comes in the door at Mark S. Rubinstein, P.C., which means there’s a good chance I’ve handled a case similar to yours. I litigate every client’s case with the greatest care and compassion possible. So call us today to discuss your DUI case with our experienced attorney. We look forward to helping you!

Mark Rubinstein

Attorney Mark S. Rubinstein has been practicing law for more than 30 years, including 25 years in Colorado. He founded Mark S. Rubinstein, P.C., in Carbondale after working for law firms in Denver and earlier in his career in San Diego. He focuses his practice in the areas of criminal defense and personal injury representation, and he is well known throughout western Colorado as an effective and unwavering advocate for his clients.