DUI AND PHYSICAL CONTROL: WHAT IS PHYSICAL CONTROL?

In Washington State, "Physical Control” is something like an attempted DUI or a possible DUI that the cops just didn’t have enough evidence to prove. Over the last few decades, DUI laws have become more and more strict. Part of the reason for this is that DUI lawyers were winning too many cases. One of the obvious defenses that we used was that, although the defendant was under the influence of alcohol when the police contacted him or her, the prosecutor could not prove that the defendant was actually driving.

Often times people go to a bar or a party where they have several drinks and then rather than drive home, they decide to sleep in their car to sober up. You would think that law enforcement and our lawmakers would appreciate that. But as I said, DUI lawyers were winning too many cases, so they came up with a new crime called “physical control.”

The problem was that the police were having was that they would find someone asleep at the wheel of a parked car with the engine running and the person turns out to be intoxicated. Well, the police never actually saw this person driving, so how could they prove that he was driving under the influence? They couldn’t. So our lawmakers made it a crime to be in control of a vehicle while intoxicated, whether you’re driving or not.

Now here’s where it gets tricky. What does being in “control” of a vehicle mean? It should say that in the statute, right? It doesn’t. The Washington State law that makes being in physical control of a vehicle while under the influence illegal is RCW 46.61.504. The statute does not explain exactly what physical control is. Does it mean you have to be in the driver’s seat? Does the engine have to be running? Do you have to be in the car at all?

Well, the Washington State Court of Appeals partly answered that question in the case, State v. Smelter. They said that "actual physical control" of a vehicle means that you were in a position to regulate the vehicle's movements OR had authority to manage the vehicle. In that case, they said you’re still guilty of a crime if you’re under the influence and the car is on the shoulder of the road, the engine is off, AND the car is out of gas! The court said that it doesn’t matter whether the car can run or not!

As you can see, the DUI laws have become very strict. It appears that as long as the prosecutor can argue that you had the means to operate the vehicle and you were in a position to do so, you can be found guilty of physical control. This is where DUI lawyers argue with the prosecutor. Are you in “physical control” if you are under the influence and merely standing next to a vehicle? Does it make a difference whether you have the keys to the vehicle? These are among several details that can get more and more minute that may have a significant impact on whether you can be convicted under the physical control law. The only way to resolve certain issues in a physical control case is to contact a DUI lawyer.