The Washington Physical Control lingo and DUIs

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February 3, 2016

The Washington Physical Control lingo and DUIs

The Washington Physical Control lingo and DUIs

Formerly, driving under the influence and being in actual physical control while under the influence were the same offense. Since as early as 1909, it has been illegal to operate a vehicle while intoxicated. Driving under the influence became a substantive offense with the Regulation Vehicle Operation Act of 1927, which made it unlawful for any person to operate a motor vehicle upon the highways of this state while under the influence of intoxicating liquor or a narcotic drug. By the 1950s, devices for analyzing breath alcohol concentration, such as Rolla Harger’s Drunkometer, and R. F. Borkenstein’s Breathalyzer were in use. (R. N. Harger, “Debunking” the Drunkometer, Journal of Criminal Law and Criminology (1931–1951) Vol. 40, No. 4 (Nov.–Dec. 1949); See also

In 1969, voters passed Initiative Measure 242, enacting the “implied consent law” which deems a person’s consent to breath or blood testing when they are in actual physical control of a vehicle within the state. Initiative Measure 242 also lowered the per se threshold to 0.10. Previously, the law provided that the amount of alcohol in the defendant’s blood, as shown by chemical analysis of blood, urine, breath, or other bodily substance, gave rise to a presumption that the defendant was under the influence if the test indicated a concentration of 0.15 or more. In 1979, the legislature divided the crimes into separate offenses. (Laws of 1979, 1st Ex. Sess., ch. 176, §§ 1 to 2.)


The requirement that the prosecution prove a relationship between blood alcohol (the statutory element) and breath alcohol (the test result) remained in effect until the 1986 Legislature redefined the per se offense in terms of breath alcohol, rendering proof of the relationship between breath alcohol and blood alcohol unnecessary. Effective January 1, 1999, the Legislature lowered the alcohol threshold to the current level of 0.08. RCW 46.61.504; Laws of 1998, ch. 213, §§ 3 to 4.

Physical control is a gross misdemeanor, unless the person has four or more prior offenses, as defined in RCW 46.61.5055(14), within 10 years before or after the current offense; or if the person has ever previously been convicted of vehicular homicide, vehicular assault while under the influence, a comparable out-of-state offense; or if the person has ever been previously convicted of felony DUI or felony actual physical control.   RCW 46.61.502(6); RCW 46.61.504(6).

On April 17, 2013, the United States Supreme Court published its decision in Missouri v. McNeely, changing the landscape for blood testing, and potentially, breath testing, under our implied consent laws. The decision held that “[n]atural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all drunk-driving cases, and instead, exigency in this context must be determined case by case based on the totality of the circumstance.   Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).


The 2013 Washington Legislature responded by de-authorizing blood draws under our implied consent law These legislative amendments codify the requirement, effective September 28, 2013, that law enforcement may only obtain blood samples “pursuant to a search warrant, a valid waiver of the warrant requirement, or when exigent circumstances exist.” RCW 46.20.308. RCW 46.20.308(3).

It should be noted that any fact that increases the mandatory minimum sentence is a fact that also must be found by the jury, beyond a reasonable doubt. In Alleyne v. U.S., Mr. Alleyne was charged with an offense that carries a mandatory minimum sentence, which increases depending on certain acts committed during the offense. Before sentencing, upon receiving the presentence report recommending a higher sentence than the mandatory minimum, he objected because the jury verdict form had not indicated that the jury had found, beyond a reasonable doubt, that he had committed the act necessitating the increased sentence. Justice Thomas, delivered the opinion of the court, overruling the lower court, holding that “[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.  Alleyne v. U.S., 133 S. Ct. 420, 184 L. Ed. 2d 252 (2012), overruling, Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002) (overruled by, Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013)).

The elements of DUI Physical Control are interesting. In order to convict a person of being in actual physical control while under the influence, the prosecution must prove, beyond a reasonable doubt, that the defendant, on or about a certain date, in the relevant jurisdiction: • had actual physical control of a motor vehicle within this state while he or she:*  has, within two hours after being in actual physical control, 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 • has, within two hours after being in actual physical control, a THC concentration of 5.00 or higher as shown by analysis of the person’s blood made under RCW 46.61.506; or is under the influence of or affected by intoxicating liquor, or any drug; or • is under the combined influence of, or affected by, intoxicating liquor, and any drug.

(RCW 46.61.504(1). RCW 46.61.504(1)(a); RCW 46.61.506 RCW 46.61.504(1)(b) (note that the statute fails to indicate 5.00 “ng/mL,” leaving the measurement, an element of the offense, undefined and unreferenced, see RCW 46.04.586); RCW 46.61.506.RCW 46.61.504(1)(c). The drafters of Initiative 502 did not insert the word “marijuana” in this subsection, as they did in RCW 46.61.502(1)(c).RCW 46.61.504(1)(d). The drafters of Initiative 502 did not insert the word “marijuana” in this subsection, as they did in RCW 46.61.502(1)(d).)

If the prosecution seeks to convict by means of analysis of a person’s breath or blood, they must prove, beyond a reasonable doubt, that any breath or blood analysis made is accurate and reliable.


Alcohol concentration means grams of alcohol per two hundred ten liters of a person’s breath, or grams of alcohol per one hundred milliliters of a person’s blood. “‘THC concentration’ means nanograms of delta-9 tetrahydrocannabinol per milliliter of a person’s whole blood. THC concentration does not include measurement of the metabolite THC-COOH, also known as carboxy-THC.” See § 3:5 for discussion of a due process “void for vagueness” argument concerning the marijuana DUI law.


The four means of proving a physical control case are known as the “per se” prongs—a breath or blood concentration of 0.08 or higher of alcohol, or 5.00 nanograms per milliliter of whole blood or higher of THC, and the “affected by” prongs—proof by means of showing the person was under the influence of intoxicating liquor, or any drug, or a combination of intoxicating liquor and any drug.


In a case where there is no breath or blood concentration, but there is other evidence of impairment, the prosecution might proceed under the “affected by” prongs of the statute. In a case where there is a test result, and other evidence of impairment, the prosecution might proceed under both prongs.


The physical control statute provides for two statutory defenses. The first defense is an “affirmative defense” which is actually an implied element of the offense for persons who claim to have consumed alcohol or any drug after being in physical control and before breath or blood testing. The second is the defense of having moved the vehicle safely off the roadway prior to being pursued by law enforcement. It is not a defense to the crime of actual physical control that a person is or has been entitled to use a drug under the laws of this state.  RCW 46.61.504(3)(a) and (b).


What if the officer has contemporaneous observation of the vehicle in motion, from a marked police vehicle, but prior to engaging emergency lights or sirens, the person moves safely off the roadway? Is a person’s lack of knowledge of being pursued implied in this affirmative defense? In the offense of attempting to elude a police vehicle (RCW 46.61.024), the pursuing marked police vehicle must give a “visual or audible signal to bring the vehicle to a stop” as an element of the offense. For that offense, the driver must know that the officer is signaling the driver to stop. The driver must also know that the pursuing vehicle is a police vehicle—a fact that may not be apparent in light of factors such as weather conditions, the location of police markings on the vehicle, and the presence of a passenger riding along with the officer. State v. Flora, 160 Wash. App. 549, 249 P.3d 188 (Div. 1, 2011).

There have been some interesting cases on the physical control state in Washington state. For example, State v. Smelter, 36 Wash. App. 439, 444–45, 674 P.2d 690 (Div. 1 1984). The Smelter case raised the question of whether being in control of an inoperable vehicle could sustain a conviction. In Smelter, police found the defendant intoxicated behind the wheel of a vehicle that had run out of gas; on review, the court of appeals noted,

The focus should not be narrowly upon the mechanical condition of the car when it comes to rest, but upon the status of its occupant and the nature of the authority he or she exerted over the vehicle in arriving at the place from which, by virtue of its inoperability, it can no longer move. Where, as here, circumstantial evidence permits a legitimate inference that the car was where it was and was performing as it was because of the defendant’s choice, it follows that the defendant was in actual physical control. To hold otherwise could conceivably allow an intoxicated driver whose vehicle was rendered inoperable in a collision to escape prosecution.


The appellate court affirmed the conviction, based on the fact the defendant drove the vehicle until it ran out of gas.


In a later decision, State v. Maxey, the court declined to read Smelter as holding that inoperability of a vehicle could not be a defense. State v. Maxey, 63 Wash. App. 488, 493, 820 P.2d 515 (Div. 2 1991). In Maxey, the defendant and two of his children were asleep in a van that his wife was driving when the police pulled her over. She testified that she put the ignition key in her pocket as she stepped out of the van to perform field sobriety tests. Mr. Maxey awoke, got out of the van, and upon the officer’s threat to get back in the van or his whole family would be taken to jail, Maxey said, “Come on, Deb, let’s go,” while sprinting into the driver’s seat of the van. The officer ran over to the van and upon seeing Maxey reach forward as if to turn on the ignition, the officer arrested him for physical control, and he was later convicted. The officer did not see the key in the ignition, nor did he look for it; Mrs. Maxey had the key in her possession at the time she went to the patrol car.


The Maxey court reversed Mr. Maxey’s conviction, finding no dispute that Mrs. Maxey had been driving, in contrast with Smelter, where the court used circumstantial evidence to draw an inference that the person in the driver’s seat had moved the car to its inoperable position. The court found that “though there was evidence that he had intended to drive away, there was no evidence that he had the ability to control the vehicle’s operation by use of the ignition key or by any other means.”


In a Washington Supreme Court case, City of Bremerton v. Corbett, the court examined the “corpus delicti” rule. In dicta, that court cited Smelter for the proposition that although a car is inoperable, evidence can be sufficient to permit a legitimate inference that the defendant drove it until it became inoperable.   City of Bremerton v. Corbett, 106 Wash.2d 569, 580, 723 P.2d 1135 (1986) citing State v. Smelter, 36 Wash. App. 439, 674 P.2d 690 (Div. 1 1984).  In Corbett, police found the defendant’s car stopped with the defendant looking under the hood, then moving into the driver’s seat. The court stated that there was

sufficient prima facie evidence of his actual physical control of the vehicle… . The car was stalled on the inside lane of a busy city street. Corbett was sitting in the driver’s seat. He was the registered owner and no one else was near the car. The car keys were on the floor below him and the ignition was on. Although the car may have been inoperable, the evidence permits a legitimate inference that Corbett drove the vehicle until it stalled and was still in physical control of it when the police arrived on the scene.


Although this case did not directly decide the issue of inoperability, it does cite Smelter with approval for the proposition that inoperability of vehicles may not be a defense where evidence is sufficient to draw a legitimate inference that the defendant drove the vehicle to the point where it became inoperable.


So in Washington state, wait before you go. Seriously, what’s the rush?  Was it really worth the drink to get there now?  Think of the end game.


Gregory Scott Hoover’s primary area of legal practice is in the form of civil, personal injury and criminal litigation, DUIs, immigration law and assisting those involved in EB- 5 real estate transactions. Mr. Hoover is licensed in both Oregon and Washington, and New York, U.S.A., and England and Wales. Mr. Hoover is also a skilled negotiator, mediator and arbitrator. As a skilled negotiator and litigator, Mr. Hoover can skillfully resolve your situation through effective negotiations or, if necessary, aggressively represent your matter in court.

Hoover Law Group

815 S. Weller Street Suite 105, Seattle, WA 98104

Hoover Law Group

1001 SW 5th Avenue Suite 1100, Portland, OR 97204


  1. Fanni says:

    I’m rellay into it, thanks for this great stuff!

  2. Capatin says:

    A rolling stone is worth two in the bush, thanks to this aretlci.

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