Though there are a lot of technical ways to combat DUI charges, most factual defenses at trial fall into one of two categories: I wasn’t drunk, or I wasn’t driving. But there are different varieties of the “I wasn’t driving” defense, described below.
Actual physical control
First of all, in Colorado “driving” includes merely being in control of the vehicle. If a jury decides that you were in “actual physical control” of the vehicle, that’s as good as driving for DUI purposes. So, if you were found sitting in the driver’s seat of your parked car, with the keys in the ignition, engine running, hands on the steering wheel, and you told the officer you were about to drive, then you were “driving” as far as the law is concerned. On the other hand, if the keys were in your pocket, the car was in your driveway, and you were asleep in the back seat, you might get charged but you could probably win that trial. The jury gets to decide what “actual physical control” means. In between those two examples is a vast gray area, and the devil is in all the little details, and how talented your lawyer is. The fact is, juries don’t like to convict someone of DUI who they think was safely trying to sleep off some alcohol in a parked car, or who wasn’t actually ever driving, but they are skeptical. And if the evidence clearly points to a drunk person who had recently been driving or was about to, the case is tougher.
It wasn’t me
If your defense is that someone was driving, but the police got the wrong person, things get interesting. Sometimes there are 911 reports of suspected drunk drivers, and first contact with the police is at your home or a restaurant, where a number of people present could have been driving at the time of the report. Sometimes there is an accident and first contact with the police is outside the vehicle, with several friends who had been in a car together, and the police can’t figure out who had been driving. These cases can be tough for the prosecution to prove, but it all depends on the facts, and you will need a talented trial lawyer. Note that you can often defend yourself even without knowing (or if you know, without telling police) who the actual driver was.