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A Physical Control DUI charge is in essence the same as a DUI charge. It was designed for when the Officer arrives and the individual is no longer operating the vehicle due to impairment. A Physical Control charge is a unique criminal offense because of its complexity in defenses and mandatory penalties that escalate dramatically on 2nd, 3rd, or greater offenses. An alcohol physical control case is one where either the individual has provided (or been forced to provide) a breath or blood sample that registers an alcohol content of greater than 0.08. If the testing is refused and the Officer does not obtain a warrant to compel a blood test, the prosecutor may still proceed with physical control charges. In that case, the prosecutor will use the evidence from your encounter with the Officer to show that your driving was affected by alcohol to an appreciable degree. If you have been arrested for physical control and either refused the test or provided a sample greater than 0.08, you will be charged with a physical control and will be facing a separate civil action against you license from the DOL. It is not uncommon for the prosecutor to charge DUI when it is more appropriately charged as a physical control (which enables the safely off the roadway defense). It takes a lawyer skilled in criminal defense to identify the problems with the prosecutors case and whether there is an affirmative defense that may be used in your case.
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Safely off the Roadway: Safely off the roadway is an affirmative defense that is may be applicable if the vehicle was moved completely off the roadway prior to an Officer pursuing the vehicle and the individual no longer is operating the vehicle. This is a very difficult defense to prove, but can result in a complete dismissal.
Physical Control, RCW 46.61.504: A person is guilty of Physical Control if they are in control of a vehicle with an alcohol concentration of greater than 0.08 or a THC concentration of 5.00 nanograms or more.
Many times the car does not need to be operable to charged with this crime.
The Department of Licensing (DOL): When you receive a license from the State of Washington you agree to not drive with a Breath Alcohol Level (BAC) of greater than 0.08 and that if lawfully requested, you will provide a sample of your breath.
When arrested for physical control, the Officer will forward the arrest report to the DOL and the DOL will automatically suspend you license. The only way to prevent this suspension is to request a DUI hearing within 20 days of the date of your arrest and contest the suspension. If you did not receive a form to fill out and send in, one can be founder on the DOL website. Call the Law Firm or Lucas D. McWethy to discuss this hearing and how we can preserve your ability to drive.
Criminal Charges: Depending on what county you are in and your criminal history, you may be charged with Physical Control immediately (as is the case with a King County DUI) or the charges may need to be reviewed by a prosecutor and the charging typically happens in 3-5 weeks (as is the case with a Snohomish County DUI).
Every Physical Control case is unique, as is every defense. The breath alcohol level, prior criminal history, driving, performance on any tests, Officer's skill level, breath testing procedures and more will all greatly effect your case. There may also be defenses available to you like drinking after driving or safely off the roadway. Contact the Law Firm of Lucas D. McWethy to discuss your Physical Control charge.
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