The charge of being in Physical Control while under the influence is termed a “lesser included offense” of Driving Under the Influence, but there is no difference in penalties upon conviction. Physical Control, like DUI, is typically charged as a Gross Misdemeanor, but in some instances can be charged as a Class C Felony. Penalties for a Physical Control conviction and Department of Licensing consequences are covered in depth in the DUI section of this website. The actual charge of Physical Control is discussed below.
Physical Control – Briefly
To achieve a conviction of Physical Control, a prosecutor is required to prove, beyond a reasonable doubt, that the person charged was in actual physical control of a motor vehicle while either a) under the influence of intoxicating liquor or any drug (or a combination thereof), or b) within two hours of having actual physical control, had a blood alcohol concentration (BAC) of .08 or higher or a THC concentration of 5.00 ng/ML or higher.
The two-hour rule means that it is not necessary that the BAC or THC levels be above the limits at the time of the physical control, just within two hours. This oddity has been upheld by the Washington State Supreme Court.
What Physical Control Means
Case law indicates that “physical control” means being in a position to physically regulate and determine whether or not a vehicle will move. Courts will find “physical control” to exist in situations where a vehicle has run out of gas, or where a passenger has simply grabbed the steering wheel of a moving vehicle. Even sleeping in a vehicle, while having the engine running, has been held sufficient.
Like with DUI, a person charged with Physical Control may argue that any BAC or THC levels were reached by consuming liquor or marijuana after driving. Case law appears to make it a requirement that the prosecution prove that at the time of driving, the person being charged had sufficient alcohol or THC in his or her body.
Unlike DUI, the Physical Control statute provides for a defense that prior to being pursued by a law enforcement officer, the vehicle was moved safely off the roadway. Whether or not a vehicle is safely off the roadway is a determination that must be made by a judge or jury at trial. As an “affirmative defense,” it must be proven by the person charged by a preponderance of the evidence (more likely than not). In certain situations, a vehicle may be said to be “safely off the roadway” even when the engine is running.
Ashbach Law Offices, LLC, aggressively represents clients charged with Physical Control offenses throughout the Washington I-5 corridor, covering Skagit, Snohomish, King and Whatcom Counties. Regular courts of practice include, but are not limited to, Anacortes, Arlington, Bellevue, Bellingham, Blaine, Burlington, Edmonds, Everett, Issaquah, Lynnwood, Marysville, Monroe, Mount Vernon, Mountlake Terrance, Redmond, Seattle, Sedro Woolley and Shoreline.