Its timeless and flawless. ”If you feel you can’t drive because of too many drinks then pull over and don’t drive.” Ever heard that before? Apparently the Court of Appeals from Division III still has a lingering question or two about this. Its recent decision in State v. Daily is the kind of decision that corrodes such a flawless phrase.
As a DUI defense attorney people ask me for advice about what to do in various situations – grey situations. Beyond the simple don’t drink and drive there is a world of “grey” that leaves doctrinaire prosecutors speechless. Its the smile in the corner of their cheeks that reminds me why I do what I do as a DUI defense attorney. Even if people make the right decision and pull over, the prosecutors still convict for DUI and it’s lessor included offense of Physical Control. Unfortunately, this policy decision (prosecute those that pull over) encourages people who realize that they shouldn’t be driving to not pull over and wait for police to arrest them. They try to make it home without being detected. Welcome to the grey world of the criminal courts.
In this recent decision, Ms. Daily pulled off the road and parked in a gas station parking lot and went to sleep. Thats just what we want people to do if they realize that they shouldn’t be driving. Remember that there will always be people with rising blood alcohol levels that aren’t affected by alcohol when they get in their car.
The facts in Daily, the Court of Appeals ruled, did not support the affirmative defense of safely off the roadway, which is a complete bar from prosecution. There were witnesses that saw Daily driving poorly for several miles before she pulled over. This was a factual ruling for the most part and should not be used otherwise. The Court’s discussion of lessor included offenses will be cited by other courts as it interprets the Workman rule that evidence in the case must support the conclusion that solely the lessor offense was committed at the exclusion of the greater offense. The Court concluded that Physical Control is a lessor included offense of DUI but found the facts are not supportive in this case of the defense of safely off the roadway defense.
Our Supreme Court recognizes that each element of physical control is a necessary element of DUI. See Nguyen, 165 Wn.2d at 435 (“[A]ll of the elements of RCW 46.61.504 (physical control while under the influence) fall within the elements of RCW 46.61.502 (DUI), thus satisfying the legal prong of the Workman test.”). The focus then is whether evidence in the case supports an inference that solely physical control was committed to the exclusion of the DUI. It does not.
Rule of Daily – If the prosecution can establish evidence of driving, then the crime is complete and the question does not include one of defenses to lessor included offenses.
State v. Deborah Daily, Washington Court of Appeals, Division III, No. 29554-1, November 15, 2011.