A defense that DUI attorneys in Spokane raise in appropriate cases is that the arrested individual was not driving and therefore cannot be convicted of driving under the influence. Unfortunately, that defense will not help a driver like the one whose arrest recently made the news when he was found passed out at Taco Bell drive-through in Northern Idaho.
To convict someone of driving under the influence in Washington, the prosecution must prove that the accused individual was under the influence while driving or while in actual physical control of a vehicle. “Driving” means controlling a car’s motion.
Actual physical control
While the legislature has not given “actual physical control” a precise definition, that section of Washington’s DUI law is usually applied to drivers who are in a position to control the movement and direction of a vehicle even if the vehicle is not being driven. One Washington court decision held that a driver was in actual physical control of a car that ran out of gas when the driver remained in the vehicle after moving it partly onto the shoulder of the road. Although the vehicle was not operable, it was capable of being rendered operable by walking to a gas station and buying more gas.
The Washington Supreme Court took note of court decisions in other states that concluded a driver was not in actual physical control of a car when the engine was not running, the keys were not in the ignition, and the driver was sleeping in the back seat and thus had no present ability to control the vehicle. If you might be over the limit and a part of your car is in the road, you should not sit in the driver’s seat with keys in the ignition, even if you do not plan to drive. If you do, you might be accused of DUI.
The “off the roadway” defense
Washington drivers have a defense to a DUI charge based on being in physical control of a vehicle if they move their vehicle safely off the roadway before they are stopped or pursued by a police officer. That defense serves a public benefit by encouraging drivers to get off the road if they feel they should not be driving.
If the driver in the Taco Bell drive-through had been in Spokane, the facts reported in the media suggest that he would not have been spared a DUI prosecution. While the driver may have moved off the roadway by pulling into the drive-thru of a closed restaurant, the “off the roadway” defense applies only to defendants who are charged with being in actual physical control of the vehicle. It does not apply to defendants who are charged with driving.
The news report states that the car was running and the transmission was still in drive when the police investigated. When the officer knocked on the window, the driver let the car roll forward, then allowed the car to move in reverse before he finally shifted into park.
The driver is presumed innocent and he may have other defenses to the charge that he was under the influence. Any driver in or near Spokane who is arrested for DUI under similar circumstances should get legal advice immediately.
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