Can I Be Arrested For Driving Under the Influence If I Am Not Driving?

Did you know that you can actually be arrested and charged with driving under the influence when you are not actually driving? Well, believe it or not, you can. And it is not as uncommon as you may think.

But, how can this happen?

Washington legal statute RCW 46.61.504 allows a law enforcement officer to arrest and charge you with a crime even if the officer never saw you driving the vehicle. The offense is commonly referred to as Physical Control of a Vehicle Under the Influence.

Physical Control of a Vehicle Under the Influence (RCW
46.61.504)

Under RCW 46.61.504, you may be charged with Physical Control of a Vehicle Under the Influence in the following circumstances:

● You had actual physical control of a vehicle when:

1. Your blood alcohol concentration (BAC) was .08 or higher;
2. The amount of marijuana in your system (THC concentration) was 5.0 or higher within 2 hours after being in actual physical control of the vehicle;
3. You were under the influence of alcohol or drugs; or
4. You were under the combined influence of both alcohol and drugs

Penalties for Physical Control in Washington

Physical Control is a gross misdemeanor in Washington and carries the same range of penalties as a DUI:

● A period of mandatory incarceration;
● Hefty fines;
● The installation of an ignition interlock device in your vehicle;
● An administrative license suspension
● Etc.

However, in order to convict you, the prosecutor will have to convince the jury, beyond a reasonable doubt, that you had actual physical control of the vehicle.

What Does It Mean to Have Actual Physical Control of a Vehicle?

The law offers no definition of the term "actual physical control." But, it is generally understood to mean having the physical ability to exercise dominion and control over the vehicle. So, if you are simply sitting in the driver's seat and have the keys, you have actual physical control of the vehicle. In fact, if you are anywhere near the vehicle and have the keys, you can still be considered to have actual physical control of the vehicle. What's more, the closer you are to the steering wheel, ignition, and the pedals, the more you will be considered to have actual physical control of the vehicle. And, if you also happen to be intoxicated or high on drugs, you can be arrested and charged with a crime under RCW 46.61.504

How You Can Avoid a Conviction for Physical Control in Washington

Under RCW 46.61.504(2), you cannot be convicted of Physical Control if you had already pulled your vehicle safely off the roadway before being approached by the police. This essentially means that if you can prove that you were "safely off of the roadway" when the police approached you, the charge may have to be reduced to a lesser offense or dismissed completely.

However, the court may also take into consideration other factors when determining if you did enough to protect the public and remove yourself from the road, such as:

● The location of your vehicle;
● Where you were located (e.g. inside or outside of the vehicle, in the driver's seat, passenger seat, or back seat); and
● The location of the car keys

The best way to avoid being convicted of Physical Control is, of course, to avoid getting yourself in a situation where you could be suspected of the crime. However, if you find yourself in a situation where you have been drinking and can't get a ride, or you need to pull over to call a cab or to sleep it off, do the following:

● Make sure you park in an authorized parking space;
● Take the keys out of the ignition;
● Put the parking brake on;
● Move to the passenger seat or to the rear seat of the vehicle; and
● Give the car keys to someone else

If you do those things to put the most distance as possible between yourself, the car keys, and the controls, you may avoid being arrested for Physical Control.

Contact An Experienced Washington DUI Attorney

The absolute best defense to any alcohol or drug-related moving violation is the help of a good attorney. The sooner you get an attorney involved, the more likely you are to resolve the case with the best possible outcome. For more information, call us today to arrange a free consultation with a knowledgeable and experienced Washington DUI attorney.