Pull Over and Sleep It Off?
I’m often asked, “what do I do if I’m driving home and I suddenly come to the realization that I should not be driving?” Pull over and stop is the obvious morale choice, right? The problem is that while legislative policy supports that choice, the courts and prosecutors don’t. To understand their reasoning we need to review the crime of DUI.
Some states have very strict DUI laws – Washington included. In a few places in the U.S., you can be convicted of DUI even if you are simply sitting (or even sleeping) in your vehicle while you are intoxicated. In Washington, many of these situations fall under an offense known as having “physical control of a vehicle while under the influence.” The idea behind this crime is that while a person was not actually driving while drunk, he or she was in danger of doing so. The punishment is identical to that of a DUI charge.
There is a defense to this crime if the driver parked safely off the roadway prior to being pursued by law enforcement. The legislature couldn’t have been clearer when they wrote, No person may be convicted under this section (Physical Control) if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway. That’s good policy, right? Pull over and stop driving. Not so says the Daily decision that came out this week.
This lesser offense and its accompanying defense were the focus of a ruling this week by the Washington Court of Appeals – Division III. In the case of State of Washington v. Deborah L. Daily, Ms. Daily was appealing her DUI conviction on the grounds that the jury was not allowed to consider the crime of physical control of a vehicle while under the influence, which would have allowed her to assert the defense not allowed under the DUI statute. The appellate court denied her appeal and upheld her conviction.
Daily was charged with DUI after another motorist called 911 to report a car swerving across the road repeatedly and nearly causing head-on collisions. After police were dispatched, Daily pulled her car into a gas station parking lot. That’s where police found her asleep behind the wheel approximately 15 minutes after the 911 call was made. Her blood alcohol content was found to be .13 two hours after she was arrested, and Daily was subsequently charged with DUI.
At her trial, Daily asked the court to consider the lesser crime of physical control of a vehicle while under the influence, which would have allowed for the safely off the roadway defense. But the “physical control” offense must be supported by facts which affirmatively establish the inference of only physical control and not DUI. In other words, the law does not allow you to assert, “Well, I might have been driving, or I might have just been in physical control of the vehicle – and you have to prove that I was driving.” Since Daily was observed driving the vehicle by the 911 caller and also admitted to driving the car, the trial court rejected her request to consider the lesser offense and so she also was precluded from raising her safely off the roadway defense.
The moral of this story? If it is clear that you weren’t actually driving while under the influence, then you can’t be convicted of DUI (but you can be found guilty of physical control of a vehicle while under the influence). However, if evidence exists that you were indeed driving, then you won’t be able to ask for this lesser offense and the defense that comes with it.
So what is the proper advice to the question, “should I pull over or not?” The truth is that there isn’t a good answer. If you continue to drive you may hurt yourself and others and you are committing the crime of DUI. If you stop and pull over you may be prosecuted.