Seattle Attorneys Blog
Generally, a Washington criminal law must be sufficiently specific to notify an ordinary person of what conduct it prohibits and provide ascertainable standards of guilt to prevent arbitrary enforcement. In a recent case, a defendant challenged the statute prohibiting being in actual physical control of a motor vehicle while under the influence after she was found sleeping in the passenger seat of her parked vehicle.
The defendant was charged with being in actual physical control of a motor vehicle while under the influence. According to the appeals court’s opinion, an officer found her sleeping in the passenger seat of her vehicle while parked with the engine running. She moved to dismiss, arguing the law was unconstitutionally vague.
The city argued the statute was constitutional and that “actual physical control” can include someone in the passenger seat of a non-moving vehicle.
The municipal court concluded the statute was void for vagueness as to the defendant.
The city applied for direct review by the Supreme Court, but it was denied and transferred to the Court of Appeals.
According to the court’s opinion, an officer saw surveillance footage apparently showing a woman drinking alcohol in the driver’s seat of a vehicle. The license plate of the vehicle was registered to the defendant and the officer determined her identification card photo matched the video.
The officer arrived at the defendant’s residence and saw the vehicle parked facing the wrong way on the side of the road in front of the residence with the engine running. She also saw the defendant unconscious or sleeping in the passenger seat. The officer also saw vomit on the passenger side of the vehicle
When officers woke the defendant, she denied drinking. The officer told her what she saw on the surveillance video. The defendant continued to deny being intoxicated and said she had not had alcohol in more than 24 hours.
The defendant declined a preliminary breath test or sobriety test. She was arrested. She was initially cited for driving under the influence of alcohol, but the complaint was subsequently amended to charge her with being in actual physical control of a motor vehicle while under the influence of alcohol.
On review, the defendant argued “actual physical control’ was void for vagueness as applied to her. Generally, a criminal statute must provide fair notice of what conduct it prohibits.
A statute may be challenged for unconstitutional vagueness on its face or in application. Except for challenges based on First Amendment rights, courts consider the statute as it is applied to the facts of the particular case by considering the party’s actual conduct.
A defendant challenging a statute as vague must show beyond a reasonable doubt that it does not provide “sufficient definiteness” for an ordinary person to understand what conduct it proscribes or that it fails to provide “ascertainable standards” to prevent arbitrary enforcement.” State v. Coria.
A statute does not necessarily have to define all terms, but is void if it is so vague someone of common intelligence would have to guess at what it means. City of Seattle v. Eze. The court may consider law, ordinary usage and the statute’s general purpose to determine if it is sufficiently clear. State v. Zigan.
RCW 46.61.504(1) provides “a person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state” and meets the meets the requirements for being under the influence of drugs or alcohol.
There is not a definition of “actual physical control” in the statute. The court considered the Black’s Law Dictionary 44 definition, which is “[d]irect bodily power over something, esp[ecially] a vehicle.” The court determined this definition was aligned with the dictionary definitions of the individual words.
The appeals court noted the “ability” language relates to the defendant’s ability to exert physical force and not the ability of the vehicle, citing to a case in which a defendant was convicted while in a vehicle that was out of fuel. The court in that case determined actual physical control means “‘present bodily restraint, directing influence, domination or regulation.’” State v. Smelter. The Smelter court noted that all of the cases finding actual physical control of a motionless vehicle involved a person in the driver’s seat.
Later cases, however, have found that a passenger can have actual physical control of a vehicle while it is moving if they can reach over and grab the wheel.
The City argued that the Washington Supreme Court had expanded the definition to include someone sitting in the passenger seat of a stopped vehicle. State v. Votava.
According to the appeals court, the issue in Votava was whether a defendant who was asleep in the driver’s seat could assert a “safely off the roadway” defense. RCW 46.61.504(2). In Votava, the defendant provided evidence he had asked the driver to pull into a parking lot, then moved to the driver’s seat and went to sleep after the driver left. The state argued the defendant could not use the safely-off-the-roadway defense because he had not moved the vehicle safely off the roadway himself and only took physical control after the vehicle had been moved.
The Votava court held the defendant could raise the defense because driving was not an element of being in physical control. The appeals court noted that the Washington Supreme Court was not addressing the meaning of “actual physical control” in Votava and therefore did not change the meaning of “actual physical control” in that case.
The appeals court concluded the statute was not unconstitutionally vague. The appeals court reversed the dismissal and remanded the case to the municipal court. The defendant had withdrawn her Knapstad motion so the appeals court did not consider how the definition applied to the facts of the case, but noted the defendant could file another Knapstad motion with the appeals court on remand.
Although the appeals court determined the statute was not unconstitutionally vague, it did not consider whether the defendant actually met the definition of being in actual physical control of the vehicle. If you are facing DUI or physical control charges, a skilled Washington DUI defense attorney can help you. Set up a consultation with Blair & Kim, PLLC, at (206) 622-6562.