Understanding the Concept of Physical Control DUI

Being arrested for driving under the influence (DUI) does not always necessarily mean that the car is currently in the action of being driven when the defendant is arrested.

In fact, many times, someone can be arrested for a DUI even though he or she was not driving. A person can be arrested under RCW 46.61.504 for physical control of a vehicle while under the influence.

What Does the Law Say?

Under RCW 46.61.504, a person can still be arrested for a DUI for having physical control over a vehicle while under the influence if the following circumstances apply.

The person must have actual physical control of the car or other motor vehicle while under the influence of any intoxicating liquor or drug and:

  1. The person has, within two hours of 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; or
  2. 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; or
  3. While the person is under the influence of or affected by intoxicating liquor or any drug; or
  4. While the person is under the combined influence of or is affected by intoxicating liquor and any drug.

What Is Physical Control?

No official jury instruction is provided on defining what actual physical control is. However, it can be determined from the circumstances at the time of the person’s arrest.

A person can be charged with being in physical control if that person is sitting in the driver’s seat of the car. But the person can also be in the passenger seat or even backseat.

If the individual has the keys to get in the driver’s seat and turn on the car and operate it, he or she can be determined to be in actual physical control. If the car is running, that fact can help further this determination.

Where the car is located at the time of the arrest can also be used to determine whether the person is in actual physical control. On occasion, defendants have been arrested for physical control even when they are not physically in the vehicle.

What Are the Defenses to a Physical Control DUI?

Several defenses exist for fighting a charge of physical control of a motor vehicle while under the influence. One such affirmative defenses is being safely off the roadway. Under RCW 46.61.504(2), no person may be convicted of physical control DUI if prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.

Where the car is located can determine just how safely it is off the roadway. Is the car in a parking lot, or is it in a shoulder, pulled off the road? Was the car still running when the police officer found it?

It is important to discuss the exact circumstances with a DUI defense attorney when preparing a defense. The key is to give enough facts to lead to any reasonable doubt that the person was in physical control of the vehicle after consuming alcohol or drugs.

Successfully proving a safely off the roadway defense can lead to the case either being dismissed or a not guilty verdict being received.

Another defense would be if the vehicle was not readily operable. Were the keys on the individual, or was he or she found in the car with the keys in another physical location? If the keys were nowhere near the person when he or she was found in the vehicle, a defense could be raised that just because the person was in the car structure itself does not mean that the person was in “physical control” over the vehicle.

The same would apply if the car was not drivable, meaning there was something wrong with the vehicle that would keep it from driving, such as no gas in the vehicle or the car’s engine was not working.

Again, these arguments are highly fact-specific and require the defendant to produce evidence to support his or her defense against the charge.

In addition, just as would be the case with any other DUI charge, defenses regarding the arrest, the test not being properly administered or any other factual circumstances that would lead a judge or jury to believe the person was not actually under the influence of alcohol or drugs would also help defeat a physical control DUI charge.