Sometimes a DUI is not a DUI in Washington - this is when it's a "Physical Control"

An excerpt from the book, “The DUI Handbook for the Accused.”  (Published by Outskirts Press in 2007.  Author:  David N. Jolly)

For information on your Washington State DUI please contact our Snohomish County DUI attorneys, King County DUI attorneys, Island County DUI attorneys, or Skagit County DUI attorneys at 425-493-1115 or check out our website at http://www.washdui.com/

 

Physical Control

RCW 46.61.504

The law states that you are in physical control of a motor vehicle if you are in a position to physically operate and control a motor vehicle.  You do not need to be moving the car or even have moved the car to be properly charged with the offense.  Over the years this law has been somewhat refined and now there is a requirement that you not only be in a position to physically operate a motor vehicle but also have the means to do so.  Typically this involves having the ignition keys in close proximity or in the ignition switch.

The statute for Physical Control, RCW 46.61.504, reads as follows:

(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.

The statute for this offense is not very helpful in defining the element of “physical control.”  However, case law helps to a degree as it is defines being in “actual physical control of a motor vehicle” as having the authority to manage a reasonably operable vehicle or is in a position to regulate movement of the vehicle. State v. Smelter, 36 Wn. App. 439, 674 P.2d 690 (1984).

In a practical setting, if you are “drunk” and in your car with the engine running to warm your vehicle while you sober up you have committed a crime.  Therefore, even though you have made the correct decision not to drive, you can be charged with physical control.  Sounds harsh and perhaps it is.

The statute does help in defining the defense to this crime.  The statute states specifically that being “safely off the roadway” is a defense to the crime.  A regular DUI is not afforded such a defense.  State v. Hazzard, 43 Wn. App. 335, 717 P.2d 282 (1986), State v. Beck, 42 Wn. App. 12, 707 P.2d 1380 (1985), review denied, 105 Wn.2d 1004 (1986).   Because this particular defense is so valuable there are many instances where officers actually charge a DUI rather than physical control to eliminate the possibility of this defense.  To do so the driver must actually be seen driving prior to pulling off the roadway.

In utilizing the defense of safely off the roadway you must remember the definition of “roadway,” as it is rather broad.  “Roadway” is defined as “that portion of a highway improved, designed, or used for vehicular travel exclusive of the sidewalk or shoulder.” RCW 46.04.600.  Interestingly, a private parking lot may be considered a roadway, if there is a threat posed to the public.  Edmonds v. Ostby, 48 Wn. App. 867, 740 P.2d 916, review denied, 109 Wn.2d 1016 (1987).