Physical Control While Under the Influence

(206) 467-3190
Burg & Lantz: WA DUI Defense
Burg & Lantz: WA DUI Defense

Give Us A Call: 206-467-3190

We have helped hundreds of people who are in a similar situation to you fight their WA DUI charges.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

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. 

Physical Control Charges are Same as DUI Charges in WA State

In addition, a Washington State physical control arrest triggers a Department of Licensing administrative suspension and you should request a hearing within 7 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.  The government prosecute's physical control cases because they say they want to intervene before a person has a chance to drive under the influence.  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. 

Physical Control Facts:

  • Same punishment as DUI.
  • Safely off the road defense.
  • Request a DOL hearing within 20 days of arrest.

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 - more likely true than not true.  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.

Statute: RCW 46.61.504 - 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) 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 and it is an affirmative defense to any action pursuant to RCW 46.20.308 to suspend, revoke, or deny the privilege to drive 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 cannabis 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 cannabis 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 three 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).

Facing a DUI Charge in Washington State?

Give Us A Call: 206-467-3190

We will not try to "hard sell" you.

Finally, we will not try to “hard sell” you to hire us. We know choosing an attorney is a big decision and one you must make carefully – not under pressure. Because an effective attorney-client relationship requires a lot of communication and trust, we really only want to represent people who feel comfortable with us and have complete confidence in our abilities. If you don't, then you have the right to an attorney that you do feel would be a better fit.

Thank you for taking the time to look through this web site. Please contact us if you would like to meet and further discuss how we may assist you.

Contact US Today

Burg & Lantz is committed to answering your questions about DUI or physical control law in Washington.

We offer a Free Initial Consultation and we'll gladly discuss your case with you at your convenience. Contact us today at 206-467-3190 to schedule an appointment.

Menu