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People v. Swain5/26/1998
Certiorari to the District Court, La Plata County
Honorable Timothy A. Patalan, Judge
EN BANC
JUSTICE BENDER Dissents, and JUSTICE SCOTT joins in the Dissent.
We granted certiorari to review the La Plata County District Court's order in People v. Swain, No. 96CR152 (Colo. Dist. Ct. Dec. 9, 1996).
The district court reversed Robert Swain's convictions for driving while ability impaired (DWAI) and driving without a driver's license and remanded for a new trial to the La Plata County Court. The district court concluded that the county court erroneously instructed the jury that the term "drove," within the meaning of section 42-4-1301(1), 17 C.R.S. (1996 Supp.), is defined as "actual physical control" of a vehicle.
Based on our analysis in Brewer v. Motor Vehicle
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division, Department of Revenue, 720 P.2d 564 (Colo. 1986), we hold that proof of "actual physical control" of a vehicle is sufficient to establish that Swain "drove" a vehicle within the meaning of section 42-4-1301(1). Accordingly, we reverse the decision of the district court and remand the case to the district court with directions to reinstate the judgments of conviction and sentences imposed for DWAI and driving without a driver's license.
I.
On the evening of September 13, 1995, Swain met some friends in Durango, Colorado for dinner. The meal lasted approximately one hour, during which Swain consumed two beers. After dinner, Swain and his friends walked around downtown Durango to see if "there was anything happening." They agreed to have a beer at a bar located on Main Street and upon their arrival, ordered beers and began to drink. Sometime between 9:00 and 10:00 p.m., Swain and his friends decided to leave the bar because they were being soaked by thrown beer. As Swain and his friends resumed walking around downtown Durango, Swain felt tired and informed his friends that he had to drive to New Mexico that night because he had a "get together" with friends in Farmington the following day.
At approximately 10:30 p.m., Swain got into his white pick-up truck and proceeded to drive out of Durango. Some time later, Swain got lost and had to backtrack to Hesperus, Colorado in order to find Highway 140 to Farmington. At an unknown time during the night of September 13, 1995, or the early morning of September 14, 1995, Swain felt sleepy, pulled his pick-up truck over to the southbound side of Highway 140, and fell asleep.
On September 14, 1995, at approximately 2:00 a.m., La Plata County Sheriff's Deputies Todd Hitti and Shelly Williams noticed a white pick-up truck parked one to three feet off of Highway 140 in the grass. Deputy Hitti pulled the patrol car over to the side of the highway and radioed central dispatch that they were investigating an "abandoned vehicle." As the deputies exited their patrol car, they both heard loud music coming from the truck.
The deputies app`-!hed the truck and found Swain lying, either asleep or passed out, in the front seat. Swain was curled in a fetal position with his feet near the driver's side door and his head resting towards the passenger's side door. The keys were in the ignition and the truck's radio was playing. The engine was not running and no evidence was introduced concerning whether the truck's headlights were on.
Deputy Hitti knocked on the window of the truck three times before Swain responded. Swain sat up, wiped his face, and rolled down the window. Deputy Hitti requested Swain's vehicle registration, driver's license, and proof of insurance. After fumbling thro
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