Can You Get a DUI From the Passenger Seat?

Most people assume that only the driver can be charged with a DUI. After all, if you’re not behind the wheel, how can you be driving under the influence? But under Colorado law, things aren’t always that simple. There are situations where a passenger—or someone sitting in the driver’s seat of a parked car—can face DUI-related charges depending on the circumstances.

Let’s take a closer look at how this can happen, what “actual physical control” means, and what to do if you’ve been charged.

Understanding Colorado’s DUI Laws

Under Colorado Revised Statutes § 42-4-1301, a person can be convicted of a DUI if they:

“Drive a motor vehicle or are in actual physical control of a vehicle while under the influence of alcohol or drugs.”

The key phrase here is “actual physical control.” It doesn’t necessarily mean the vehicle was moving—it means the person had the ability to make it move. That distinction can lead to DUI charges even when the person isn’t driving.

What Is “Actual Physical Control”?

Courts in Colorado interpret “actual physical control” broadly. The goal is to prevent impaired individuals from being in a position to operate a vehicle, even if they haven’t yet done so.

Some factors courts consider include:

• Where you’re sitting (driver’s seat vs. passenger seat)

   

• Whether the keys are in the ignition or nearby

   

• Whether the engine is running

   

• Where the vehicle is located (roadway, parking lot, private property)

   

• Your intent (were you planning to drive soon?)

   

If you’re in the driver’s seat and intoxicated—even with the engine off—you may still be considered in “actual physical control” of the vehicle.

So, Can a Passenger Get a DUI?

If you’re strictly a passenger—not behind the wheel and not in control of the car—you generally cannot be charged with a DUI. However, there are exceptions where a passenger could still face other alcohol-related charges, such as:

• Public intoxication

   

• Open container violations

   

• Aiding and abetting a DUI

   

• Minor in possession of alcohol (if underage)

   

For example, if you help a drunk driver operate a vehicle (e.g., steering while they work the pedals), you could be accused of aiding in the offense. Or, if you switch seats with the driver after being stopped by police, you might face obstruction or false reporting charges.

The “Sleeping It Off” Scenario

One common gray area involves people who “sleep it off” in their vehicles. You may think you’re doing the responsible thing—but if you’re found in the driver’s seat with the keys accessible, officers might argue you were in “actual physical control.”

To avoid this, consider:

• Sleeping in the back seat, away from the controls

   

• Removing the keys from the ignition and placing them far from reach

   

• Parking your car in a safe, legal spot

   

• Avoiding the appearance of intent to drive

   

These precautions can help reduce the risk of being charged.

Other Charges a Passenger Might Face

Even if you can’t be charged with DUI as a passenger, you’re not entirely off the hook. Depending on your actions, you could face:

• Open container violations: Colorado law prohibits open containers of alcohol or marijuana in a vehicle’s passenger area.

   

• Public intoxication or disorderly conduct: Acting out or being visibly intoxicated can lead to separate charges.

   

• Possession of controlled substances: If drugs or paraphernalia are found near you, you may be charged even as a passenger.

   

What to Do If You’re Charged While Not Driving

If you were arrested or cited for DUI—or a related offense—while not actually driving, don’t assume it’s a mistake that will go away on its own. These cases can still carry serious consequences, including license suspension, fines, and criminal records.

Here’s what you should do:

1. Stay calm and polite when dealing with law enforcement.

    

2. Do not admit to drinking or intending to drive.

    

3. Contact an experienced DUI defense attorney as soon as possible.

    

An attorney can review your case, challenge the “actual physical control” evidence, and work to reduce or dismiss the charges.

Why You Need a DUI Defense Lawyer

At Thomas and Associates, our team has years of experience handling complex DUI and alcohol-related cases across Colorado. We understand how easily these situations can arise—and how devastating a conviction can be for your career, finances, and reputation.

Whether you were found asleep in your car or accused of helping an impaired driver, we’ll fight to protect your rights and your future.

Get Legal Help Today

If you’ve been charged with DUI—even as a passenger or while parked—you need strong legal representation. Contact Thomas and Associates today for a confidential consultation. We’ll explain your options, help you build a defense, and guide you every step of the way.