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Physical Control of a Vehicle v. DUI

Hughes Robbins, P.S. May 22, 2014

A charge of Physical Control of a Vehicle is closely related to a charge for DUI. However, two significant differences exist – the element of actually driving the vehicle is absent from a Physical Control charge and the affirmative defense of “safely off the roadway” is available.

In terms of actually driving the vehicle in a DUI case the prosecutor must prove, as an element of the crime, that the defendant drove the vehicle. On the other hand, with a physical control charge, the government must only prove that the defendant had “actual physical control” and not that the defendant actually drove the vehicle.

The Washington State Legislature has not defined “actual physical control,” however courts have come to define the term quite broadly. In one instance, the court found “actual physical control” of a vehicle when a man sat in the driver’s seat of his parked car with the keys in the ignition (see McGuire v. Seattle). In another instance, the court found “actual physical control” when a passenger in a car grabbed the steering wheel for a split second (See State v. Arambul). Thus, courts take a liberal approach when interpreting what constitutes “actual physical control.”

Also in contrast to a DUI, a charge of physical control does brings with it the affirmative defense of “safely off the road.” This defense means that, if the defendant can prove by a preponderance of the evidence that s/he was safely off of the roadway, a judge or jury may find that the defendant was not in physical control of the vehicle. The judge or jury may take other evidence into consideration – location of the vehicle, seeming control of the vehicle, location of the keys – in order to determine whether or not the defendant truly attempted to safeguard the public by removing himself from the road.

If you need help with a Physical Control or DUI charge call us today!