One need not be actually driving a motor vehicle to run the risk of suffering DUI type penalties. A common albeit less frequent charge is that of Physical Control. RCW 46.61.504 sets out the elements necessary for a conviction of this charge. And while the elements are different, the penalties remain the same.  The major obvious difference between "Physcial Control" and DUI is that "driving" is not an element of the charge. One can be charged with physical control in Washington if he is sitting in the driver's seat, the passenger seat or even the back seat of a parked car. People have been charged with Physical Control in cases where they are not even in the vehicle.

Another less obvious difference between Physical Control an DUI is that in Washington, there are defenses to the former that are not available to the latter. It is a defense to Physical Control if it can be proven that the vehicle was parked safely off the roadway before being observed by the officer.  It is also a defense if the vehicle can not be made readily operable. If arrested or charged with Physical control in Washington, contact one of our Washington DUI attorneys for a free consultation

RCW 46.61.504 - Physical control of vehicle under the influence.

     (1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state:

     (a) And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or

     (b) While the person is under the influence of or affected by intoxicating liquor or any drug; or

     (c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.

     (2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state does not constitute a defense against any charge of violating this section. No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.

     (3) It is an affirmative defense to a violation of subsection (1)(a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after being in such control. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.

     (4) Analyses of blood or breath samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in such control, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(b) or (c) of this section.

     (5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.

     (6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if: (a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; or (b) the person has ever previously been convicted of (i) vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a), (ii) vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), or (iii) an out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection.

[2008 c 282 § 21; 2006 c 73 § 2; 1998 c 213 § 5; 1994 c 275 § 3; 1993 c 328 § 2; 1987 c 373 § 3; 1986 c 153 § 3; 1979 ex.s. c 176 § 2.]

Notes:

     Rules of court:  Bail in criminal traffic offense cases -- Mandatory appearance -- CrRLJ 3.2.

     Effective date -- 2006 c 73: See note following RCW 46.61.502.

     Effective date -- 1998 c 213: See note following RCW 46.20.308.

     Short title -- Effective date -- 1994 c 275: See notes following RCW 46.04.015.

     Legislative finding, purpose -- Severability -- 1987 c 373: See notes following RCW 46.61.502.

     Severability -- 1979 ex.s. c 176: See note following RCW 46.61.502.

Criminal history and driving record: RCW 46.61.513.