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"My friend told me I couldn't get a DUI unless the cops saw me driving, is that right?" Um....no.

Posted by Nathan Webb | Nov 19, 2013 | 0 Comments

Did you know you can be arrested for DUI even if the officer failed to witness you driving.

This is possible under the lesser included offense of Actual Physical Control of a Motor Vehicle While Under the Influence of Alcohol and/or Drugs (including marijuana), the penalties are exactly the same as a DUI conviction.  This statute is the Physical Control Law -  view it here.

Essentially an officer might witness a person passed out behind the wheel or maybe they ran off the road and they are contacted while still seated in the driver's seat.  If you were readily able to control the motor vehicle you can be charged.  There is, thankfully, an affirmative defense, which I have asserted on behalf of many of my clients.  It is called the safely off the roadway defense.  Basically it is up to the trier of fact (jury or judge) to determine whether your vehicle, at the time of contact with the officer was "safely off the roadway."  The legislature wanted to enable persons who began to drive only to realize they were actually impaired an option.  Either they could continue driving or pull safely off the roadway and sleep it off, call a cab, walk, etc.  Therefore, if you were contacted while seated inside the vehicle and the officer did not witness you driving, you have a built in defense.

RCW 46.61.504 - Physical Control of a Vehicle Under the Influence

(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.

(2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state does not constitute a defense against any charge of violating this section. 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.

(3)(a) It is an affirmative defense to a violation of subsection (1)(a) of this section which the defendant must 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. 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.

(b) It is an affirmative defense to a violation of subsection (1)(b) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of marijuana after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after being in control of the vehicle. 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.

(4)(a) Analyses of blood or breath samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in such control, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(c) or (d) of this section.      (b) Analyses of blood samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in control of the vehicle, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by marijuana in violation of subsection (1)(c) or (d) of this section.

(5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.

(6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if:      (a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; or      (b) The person has ever previously been convicted of:      (i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a);      (ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b);      (iii) An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or      (iv) A violation of this subsection (6) or RCW 46.61.502(6).

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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