No one sets out to be charged with Physical Control and when it happens, it is usually a surprise that results in confusion, anger and misunderstanding. It is late at night. You’ve left a bar or a party after having had a few drinks. As you get into your car to drive away you feel fine. Somewhere along the way home however, it hits you, and you realize that you have had too much to drink. You decide to pull over and get off the road. Maybe sleep it off or call someone to come pick you up. Though the sentiment behind that decision is laudable, how you execute that decision can mean the difference between escaping criminal prosecution and being convicted for an offense that carries mandatory Washington DUI penalties. Welcome to the law of Physical Control in the State of Washington.
Physical Control in Washington State
In Washington, it is a crime to be in physical control of a motor vehicle while under the influence of drugs or alcohol, to have a BAC of equal to or greater that .08 within two hours of being in physical control of a vehicle or have a THC concentration of 5 nanograms or more within that same two hour time span. The short hand moniker for this charge is “Physical Control”and the penalty structure for conviction is the same as for a DUI. The Washington State Legislature recognized the crime of “Physical Control” as a means of deterring people from entering their vehicles while impaired and to give police and prosecutors a means to arrest and convict individuals who are deemed to be a potential threat to public safety. At the same time, it is recognized that society wants to encourage those who are driving while impaired to get off the roadway safely once they acknowledge their impairment without the specter of criminal prosecution looming over them. If a person were to believe that pulling to the side of the road might increase the likelihood of an arrest or conviction, he would be more likely to race home to the safety his driveway. Thus, certain definitions and defenses were included in the physical control statute to provide protections to those who either do not present a threat to the public or who have safely removed themselves from the public roadway.
Elements and Defenses
In order to prove an allegation of “Physical Control” the state must prove, along with intoxication, that the person was “in control” of a “readily operable” vehicle. If either one of those can not be proven, the degree of intoxication is irrelevant. The problem is that over the years, courts have broadly defined what it takes to satisfy those elements. A car that is out of gas and missing a tire has been found to be readily operable. A person a quarter mile away from his car has been found to be in physical control. Relying on common sense definitions can be frustrating for both the defendant and the DUI lawyer. Fortunately, the Washington State Legislature also created an affirmative defense to the charge of Physical Control. If a person is “safely off the roadway” at the time he is approached by the police (assuming no one saw him driving) then he can not be convicted of Physical Control.
Safely off the Roadway as a Defense
Recognizing that from a public policy perspective it makes sense to provide an incentive to impaired drivers to remove themselves from the public roadways, the legislature included the affirmative defense of “safely off the roadway” when it created the offense of physical control. Though there is not one accepted definition of “safely off the roadway” there is a spectrum of parking behavior that is illustrative. Being discovered, passed out and in a running vehicle that is stopped in the middle of the road is probably not going to satisfy what is required for the defense. Being in a car that is turned off and is parked in a legal parking space that is not near the roadway and presents no danger to persons or vehicles probably will. Everything in between is either more like the former or the latter of the above extremes.
One problem that we encounter when trying to present this defense is that the police are well aware of the defense of “safely off the roadway” and often times go to great lengths to prevent it from being successfully presented. I can’t begin to cite all of the cases we’ve had where our client understood he or she was intoxicated, drove off of the roadway and into a safe and legal parking space, only to have the arresting officer make a false claim that some other dangerous behavior was present. The most common is an allegation that despite being in a legal space and off the roadway, the defendant had his car turned on, and in park, but with his foot on the accelerator and revving the engine. In cases where the officer has an in dash video camera documenting the contact , such a fabrication is easily ferreted out. Unfortunately, most cases do not involve this kind of check and balance of the officer’s report which can leave the defendant at the mercy of the arresting officer’s ethics.
While fully understanding that no one ever finds these legal blogs prior to an incident occurring, it would be incomplete of me to not at least provide some rudimentary advice to the person who might find themselves in this situation in the future. If you happen to be driving and feel as though you are impaired. Immediately and safely exit the roadway. Find a safe a legal parking spot. If you can safely do so, remove your self from the vehicle and lock your keys inside while awaiting your ride. If this is not possible, make sure that your car is not on, that you are in the back seat, and that your keys are not on you or in the ignition. Preferably in the trunk. This may seem excessive but the alternative puts you much more at risk.