Physical Control is the act of having actual physical control of a motor vehicle while under the influence of intoxicants. Imagine being drunk behind the wheel and the car is not moving when the cop sees you and starts his DUI investigation. If you are conscious and it is clear you were driving just before the cop observes your activity you most likely will be charged with a DUI instead of Physical Control. Prosecuting attorneys generally reserve the Physical Control criminal charge for situations where the driver is passed out or unconscious behind the wheel and technically still in control of the vehicle. RCW 46.61.504 is the Washington State law that defines Physical Control.
Ever see a car at a stop light still running while the driver has their head slumped against the steering wheel and their foot is rested on the break? Ever see a car in a parking lot adjacent to the roadway with a passed out driver at the wheel? The keys are in the ignition but the car is not running? Those are the kind of situations where the unconscious driver will be charged with Physical Control. Basically, it is a DUI and carries the same DUI penalties but the prosecution needs to prove the driver was “in control of the vehicle” rather than was “driving the vehicle.” Washington State enforces a Physical Control law and it is critical you hire an experienced DUI attorney if you have been arrested for that crime.
Unlike DUI, there is an affirmative defense for Physical Control; being safely off the roadway. The legal theory of being “safely off the roadway” is not black and white and each set of facts should be reviewed on a case by case basis. That means one Physical Control situation will have a different set of facts than the next. Was your car located on the roadway? Was it located in a parking lot? Was the parking lot near a roadway? If your car were to progress forward would it end up on the roadway? Was your car located in an agricultural field? Where were the keys? Were they in the ignition or in your pocket or your hand or were they outside on the ground? Where were you? Were you in the drivers seat, passenger seat or back seat?
The circumstances of your arrest and every fact will determine whether or not you can utilize the “safely off the roadway” affirmative defense. This is why you need an experienced DUI lawyer if you have been arrested for Physical Control. Some lawyers are not even aware of this defense or know when it is proper to use during a Physical Control case.