Physical Control Charges are Same as DUI Charges in WA State
A Washington State physical control charge is identical in punishment to a Washington State DUI charge. This means that if you are convicted of physical control the court must impose mandatory jail time, fines, and an ignition interlock device will be required. In addition, a Washington State physical control arrest triggers a Department of Licensing administrative suspension and you should request a hearing within 20 days of your arrest.
A DUI charge and a physical control charge require the government to prove different elements of the crime. In a Washington State DUI case the government must prove you drove a vehicle. However, to prove the crime of physical control the government must prove that you were in “actual physical control” of a vehicle.
The term "actual physical control" is not defined by Washington statute. Examples of drivers found to be in "actual physical control" include: a driver sitting in the drivers seat of a parked car with the keys in the ignition; a driver seated in the drivers seat of a vehicle that had run out of gas; a driver seated in the drivers seat of a car in an intersection with the keys on the floor of the vehicle; and a passenger who grabs the stearing wheel of a vehicle for a split second. Unfortunately, we have represented many drivers arrested for physical control who believed they were doing the right thing by waiting in their parked car to sober up.
Safely off the roadway - defense to physical control
There is a defense to physical control called safely off the roadway. If you have parked your car safely off the roadway, you can assert this defense and ask a jury or judge to find you not guilty of physical control. A defendant has the burden of proving the safely off the roadway defense by a preponderance of the evidence. It is a question of fact for the jury or judge to decide what is safe and they may consider the location of the vehicle, the extent of the drivers control over the vehicle, and any other relevant evidence. Be aware that some jurisdictions, like the City of Seattle, will argue that "roadway" is defined as "curb to curb" and therefore even a vehicle legally parked on the side of the road is not "safely off the roadway" for purposes of the affirmative defense.
Physical control of 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) While the person is under the influence of or affected by intoxicating liquor or any drug; or
(c) 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) 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.
(4) 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)(b) or (c) 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), or (iii) an out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection.