Many people assume that pulling off the road to rest when you have been drinking is not only a safe alternative to driving under the influence but also the takes away the chance of being charged with a DUI. This is not an accurate assumption.
From a safety perspective, the wisest move is to refrain from getting behind a wheel at all if you have been drinking. If you find yourself drinking and driving, it is clearly the safer move to pull off the road and call for a ride rather than continue driving. From a legal perspective, you could still be in serious trouble. You could be arrested for Physical Control of a vehicle under the influence. If you have been charged with physical control you may have an affirmative defense if you have pulled safely off the roadway. Please contact us to find out what your rights and defenses are in a Physical Control case.
Physical Control is a crime that is closely related to DUI, just as serious, and carries the same penalties. In Washington State, it is a crime to be in physical control of a motor vehicle while under the influence of drugs or alcohol, even if the vehicle is not moving. This law is meant to deter people from entering their vehicles at all while under the influence.
Physical Control Law:
According to RCW 46.61.504:
-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) 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; 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.
The penalty structure for Physical Control is the same as for DUI. This means a conviction may include mandatory jail time, fines, an ignition interlock device to be installed, and an administrative license suspension. Please see our previous post about the fines and penalties for Washington State DUI convictions.
Differences between Physical Control and DUI:
A Physical Control charge and a DUI charge require prosecution to prove different elements of the crime. With a DUI, prosecution must prove the defendant drove the motor vehicle. With Physical Control, there is no requirement that the defendant was driving. Rather, it must be proven that the defendant was in “actual physical control” of the vehicle. There is not a specified definition of what “actual physical control” means; it is up for interpretation by the court. One example of actual physical control includes a driver who is sitting in the driver’s seat of a parked car, keys in the ignition, waiting to sober up or for a ride.
The other primary difference between Physical Control and DUI is that Physical Control law allows for potential exception if the car is parked safely off the roadway prior to being approached or pursued by law enforcement. This can be difficult to prove and requires collaboration with a knowledgeable and competent attorney (see below).
In Washington State, there are defenses for Physical Control that are different than for DUI. This includes a defense called “safely off the roadway”. There is not a cut and dry definition of what constitutes parking safely off the roadway, but rather a spectrum of parking behavior to be considered and the defendant has the burden of proof. It is critical you contact an experienced attorney to guide you through this process and exercise all possible defenses in your case. Penalties are serious and having a Physical Control conviction on your record is equally as detrimental as a DUI. These are significant charges and you should not try to tackle them without experienced counsel to advise you appropriately and advocate on your behalf.