Padula & Associates, LLC Washington Criminal Defense Attorneys, Bellevue - SeattleDUI and Criminal Defense Attorneys

Call Now 425-883-3366

Having "Physical Control" of a Vehicle While Under the Influence is a Crime in Washington State

Posted Wednesday, March 7, 2018 by Lizanne Padula.

alt text

Certainly a person who is caught driving, actually operating a motor vehicle, while under the influence of “intoxicating liquor, marijuana, or any drug” may be charged with a DUI. But in Washington State, mere “physical control” over a vehicle while under the influence is a crime.

Physical Control of a Vehicle While Under the Influence

Under Washington State law:

  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 (Evidence and Tests for Persons Under the Influence of Alcohol or Drugs); or

b. The person has, within two hours after being in actual physical control of a vehicle, a THC concentration of 5.00 or higher as shown by analysis of the person’s blood made under RCW 46.61.506 (Evidence and Tests for Persons Under the Influence of Alcohol or Drugs); or

c. While the person is under the influence of or affected by intoxicating liquor or any drug; or

d. While the person is under the combined influence of or affected by intoxicating liquor and any drug. (RCW 46.61.504(1)(a)-(d)).

The criminalized conduct and legal limits under RCW 46.61.504 Physical Control of Vehicle Under the Influence are the same as RCW 46.61.502 Driving Under the Influence. The only difference in the statutory elements is that DUI requires that a person drive a vehicle and Physical Control of Vehicle Under the Influence requires only that a person be in actual physical control of the vehicle while under the influence.

What does “actual physical control of a motor vehicle” mean? The statute does not define what “actual physical control” means. The following are examples of when a driver may be found to be in “actual physical control” of their vehicle:

• A driver sitting in the driver’s seat in their parked car waiting to sober up before driving.

• A driver sitting in the driver’s seat of his car parked with keys in the ignition.

• A driver sitting in the driver’s seat of a car that had run out of gas.

• A driver sitting in their car on the side of the road with their keys in the ignition.

Whether conduct constitutes a driver being in “actual physical control” of his or her vehicle in regard to violating RCW 46.61.504 is case specific and fact specific. If you are facing charges for Physical Control of Vehicle Under the Influence we urge you to hire an experienced DUI defense attorney.

Affirmative Defenses Against Physical Control Charges

The statute carves out affirmative defenses against charges for Physical Control of Vehicle Under the Influence. It is an affirmative defense if the defendant can “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.” RCW 46.61.504(3)(a). This means that the defendant must demonstrate that he consumed the alcohol between the time he was in actual physical control of the vehicle and the time his blood alcohol concentration was tested. The Court may only allow a defendant to present evidence of this affirmative defense if the defendant notifies the prosecution “prior to the omnibus or pretrial hearing” of his or her intent to assert this affirmative defense.

Similarly, it is an affirmative defense if the defendant can “prove by a preponderance of the evidence” that the defendant consumed enough marijuana after being in physical control of the vehicle, but before administration of a blood test, to cause the defendant’s THC concentration to be above the legal limit of 5.00. Again, 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.” RCW 46.61.504(3)(b).

Defending Against Physical Control While Under the Influence or DUI Charges

Between the license suspension, minimum penalties, and the long-term consequences of having a Physical Control While Under the Influence or a DUI on your record, you need to hire a fierce advocate to defend you against the state’s accusations. There are a number of ways to successfully defend against these charges, including the possibility of getting the charges dropped completely or reduced to lesser charges.

Most of the Physical Control and DUI cases we handle at Padula & Associates, LLC are reduced to lesser charges or dismissed entirely. Hiring our experienced DUI defense attorneys can help you get the best possible outcome in your case.

Call us 24/7 at 425-883-3366 or fill out this simple web form to schedule a free consultation with an experienced DUI defense attorney.

For over 20 years, Padula & Associates, LLC has been serving the people of King County, Snohomish County, and throughout Washington State with aggressive criminal defense services.