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How can I get a DUI if I wasn't even driving?

Posted by Nathan Webb on Oct 29, 2014 | 0 Comments

Seattle DUI attorney, Nate Webb, answers the question: "If I wasn't Driving how can I be charged with a DUI?"

How can I be charged with a DUI when I was just sitting in my car?


There is a specific statute that allows for the charging of a DUI case wherein there is no proof the officer actually say you driving.  It is called Physical Control of a Vehicle Under the Influence (RCW 46.61.504).

The applicable statute says this:

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) 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.

What is Actual Physical Control (non-driving DUI)?  There is no jury instruction on what actual physical control is, the only instruction given from the court instructs the jurors as to the following:

A person commits the crime of being in actual physical control when he or she has actual physical control of a motor vehicle while he or she is under the influence of or affected by intoxicating liquor or while he or she has sufficient alcohol in her body to have an alcohol concentration of 0.08 or higher within two hours after being in actual physical control shown by an accurate and reliable test of the person's breath. WPIC 92.01

So how can I be convicted?  The prosecutor is going to somehow have to convince the jury you had control over the vehicle and the defense will have to convince the jury you did not.  Either way, it is always and interesting argument.

Safely Off the Roadway - An Affirmative Defense

If you have been charged with Physical Control of a Motor Vehilce While Under the Influence of Alcohol or any Drug (RCW 46.61.504) there is one well-known defense to the charge.  It is an affirmative defense known as "safely off the roadway." Even the cops know this defense, so they always, I repeat always claim you weren't safely off the roadway, but guess what, that is up to the jury to decide.

As a seasoned Seattle DUI Attorney, I have utilized this defense numerous times for persons charged with a Washington State DUI.  What the statute says about the defense is this:

"No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway." RCW 46.61.504 (2).

Now the law enforcement office undoubtedly knows about the defense to the charge so I have seen reports written which say something like "I observed the vehicle pulled to the shoulder of the road but the exterior side mirror was protruding into the lane of travel and cause a significant risk to passing motorists."  What does that mean, even though you pulled your car over and stopped driving as the legislature intended, if you had been drinking the cops want to bust you, they don't care there is an applicable defense.  I've literally had a prosecutor tell a jury (after my client was found not guilty) that "I don't believe in safely off the roadway."  Yes this is a from a person who took an oath to seek justice under the law.

Seattle DUI Lawyer, Nate Webb knows how to apply this defense effectively. I have had numerous cases dismissed when applying this defense and not guilty verdicts when presented to a jury.

If you weren't driving and were still arrested for DUI (Physical Control), call today to discuss your case (425) 398-4323 or (844) DUI-GONE.

About the Author

Nathan Webb

Nathan "Nate" Webb has been repeatedly recognized by Washington Law and Politics Magazine as a Super Lawyer Rising Star, named one of Seattle's Top Attorneys by Seattle Met Magazine and is rated Superb (perfect 10 out of 10) by Avvo.com.

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Nathan Webb, Attorney at Law

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Nathan Webb is a Superb-rated Seattle Attorney by Avvo.com and has been repeatedly named a SuperLawyer Rising Star and recognized as a "Top Attorney" in Washington State by Seattle Met Magazine. He helps people with Auto Accident Injury claims, Social Security Disability Claims, DUI charges and civil traffic offenses throughout the Greater Seattle Metro Area

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Mr. Webb offers a free confidential initial consultation to discuss your case and review your options and rights. Contact Mr. Webb today to schedule your meeting.