Safely off the Roadway?

 Did you know you can be found guilty of “DUI” simply by sitting behind the wheel of your car while over the legal limit? “Physical Control” is essentially the same crime as DUI without the driving element (.08% or higher within 2 hours of being in control of a vehcile).  The potential and minimum punishments are identical to DUI. 

In Washington there is a defense to Physical Control.  The burden of proof is on the defendant to show he or she ”moved safely off the roadway prior to pursuit by law enforcement.”  Sounds pretty straight forward.  However, juries are given little guidance as to what exactly this means.

In a recent case, the Arizona Supreme Court addressed the problem of defining “Physical Control.”   While the physical control laws in Washington and Arizona are not identical, and Arizona does not appear to offer the same statutory defense, some of the analysis may be helpful in arguing Physical Control in Washington.  Arizona v Zaragoza, 209 P.3d 629 (2009)  announced thirteen factors for a jury to consider when deciding whether an individual is in physical control of a vehicle.  

Arizona applies a “totality of the circumstances” test to the question of whether the defendant is in physical control of the vehicle.  Specifically, the jury is to consider the totality of circumsatnce shown by the evidence and whether the defendant presented a real danger to any person.  The thirteen factors are as follows: 

1. Whether the vehicle was running;
2. Whether the ignition was on;
3. Where the ignition key was located;
4. What position the driver was found in the vehicle;
5. Whether the person was awake or asleep;
6. Whether the vehicle’s hedalights were on;
7. Where the vehicle was stopped;
8. Whether the driver had voluntarily pulled off the road;
9. Time of day;
10. Weather Conditions;
11. Whether the heater or air conditioner was on;
12. Whether the windows were up or down;
13. Any explanation of the circumstances shown by the evidence. 

So, how does this apply to Washington?  Washington State’s “safely off the roadway” defense, codified in RCW 46.61.504, would seem to implictly include these factors.   They certainly could be helpful when considering both; (1) if a an indvidual was actually in control of a vehicle, and (2) whether that individual can establish the statutory defense necessary to negate the charge.   (Though, I must admit, I’m not sure how factors 11 and 12 contribute to the analysis.)  Arguably these factors should be included in any physical control or “safely off the roadway” jury instruction.   Absent this they form a great structure to craft the theory of your case around.