We’re not as far away from the driverless car as one might think. Automobile technologies continue to evolve, and within several years, we’ll probably see widespread use of self-driving cars. Some will use this technology to lessen their time spent commuting, others may want to increase their own safety while on the road. Still others will explore using a driverless car as a designated driver. And that brings into question: how will self-driving cars impact Colorado DUI laws?
The Definition of “Driving” in DUI
When we discuss driving within the context of a driverless car and DUI, there is no driver, so there can’t be a DUI, right? The answer to that is an emphatic “that depends”. We must assume that the occupant of the vehicle wouldn’t be doing anything to accelerate, decelerate, or stop the vehicle, but what about navigation? Would the occupant of the vehicle be considered a passenger who is navigating by communicating to the vehicle in some manner first where they would like to go, and then possibly by what route they’d like to take to get there? Or would that make them a driver?
Consider a situation where the passenger would have to take control of the vehicle in an emergency situation. In such a case, it’s easy to make a comparison between a pilot who is flying a plane that’s on autopilot and an occupant in a driverless car. Both the pilot and the occupant still have the ultimate responsibility to be in control of their respective vehicles, even though a machine is doing the flying/driving for them. Can the pilot sit back and have a few drinks while the autopilot flies the plane? If not, then how can the “passenger” in a driverless car be allowed to do so?
Ultimately, the answer to the question comes down to how we, or the law, go about defining the term “driver”.
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Actual Physical Control
To begin with, in Colorado, it’s illegal to drive a vehicle while under the influence of alcohol or drugs. While the word “driver” isn’t defined by Colorado law, a driver is considered to be someone who is driving or who is in actual physical control of a vehicle. Colorado statutes don’t define actual physical control. Therefore, in order to find out what that term means, we have to look at case law.
In terms of DUI, Colorado courts have held that a person is in actual physical control of a vehicle when they exercise bodily influence or direction over the vehicle. This, in turn, must be determined by the totality of the circumstances surrounding the arrest.
Some of the factors that can be used to determine if someone was in actual physical control of a vehicle include, but are not limited to:
- Were the keys in the vehicle’s ignition?
- Was the motor running?
- Where was the vehicle found?
- Where was the person inside the vehicle when it was found?
- Was there any other aspect present that would indicate that the person in the vehicle exercised bodily influence in the direction of the vehicle?
Again, no one factor can be used to determine whether control existed. It’s the totality of the circumstances that matter.
It should be noted that movement of the vehicle is not a factor to be considered when determining control. This means that a vehicle could be completely stopped and the driver could still be considered in control of the vehicle.
What does this mean when it comes to driverless cars and DUI?
Colorado courts have held that all of the following circumstances constitute “driving” for the purposes of DUI if you’re intoxicated and:
- Asleep in the driver’s seat with the engine running and the vehicle stopped; and
- Asleep in the driver’s seat with the keys in the ignition, the ignition turned to “on”, the lights and radio are on, but the engine is off.
Therefore, when it comes to driverless vehicles, it would appear that simply being in the vehicle while intoxicated would be enough to be charged for a DUI if:
- The occupant gave the car a destination;
- Gave the car directions to a destination;
- Programmed a GPS device in the car;
- Started the vehicle by any means; or
- Was in the passenger seat with the engine running or the vehicle was moving.
Any of these situations would theoretically put the intoxicated occupant in actual physical control of the driverless vehicle. In other words, since they were exercising bodily influence or influencing the direction of the vehicle, they were driving while under the influence.
Currently, there have been no reports of anyone within the United States being charged with drunk driving while using a self-driving car, likely because they are only being tested on our roads, and are not widely in use. Arguably, to avoid being arrested for DUI or DWAI in a driverless car, the user would need to:
- Program navigation while completely sober, or have another person who is not intoxicated or impaired do it;
- Sit in the back seat after becoming impaired or intoxicated;
- Have zero interaction with the vehicle other than entering the vehicle.
Right now, we can only theorize how the widespread use of driverless cars will impact the DUI and DWAI laws in Colorado. It is bound to be interesting seeing these issues develop and evolve, and we at Schwaner Law will keep you up to date on the most recent developments in driverless cars, and how they will impact Colorado DUI laws. If you have questions regarding DUI or DWAI laws in Colorado, or you are seeking experienced legal representation, contact us at (719) 440-6720 or using our contact page.