Physical Control Trial last week

So its been a couple days since the worst loss of my legal career. Im finally starting to get over it a little bit, but it still really, really stings. I especially feel for my client. He is a stand up guy, never been in trouble before, and because of some unfortunate circumstances he now has a criminal conviction on his record. That is the toughest part to swallow.

In my legal career I have litigated over 100 jury trials, and probably another 15-20 bench trials. And in all of those cases I have never had a Judge completely take over a case by their legal rulings. Sure I have lost motions, and I have had objections overruled, but I have never had a Judge be the direct cause of a jury convicting my client. That is until now. Discover more about the services of a drunk driving attorney in Seattle WA here.

Earlier this week I had a Physical Control case get sent out to trial in a local municipal court. For those of you that don’t know, Physical Control is basically like a DUI, except there is no driving. For example, if a person gets into a car accident, or if they pass out at a red light, and nobody sees them driving. Usually they will get charged with physical control, because for a DUI there needs to be direct evidence of driving. Physical Control just needs a person to be impaired, and in sitting in their vehicle.

However in a Physical Control case, the Washington State Legislature has enacted a defense somebody can assert if they are charged with this crime. That defense states, “if prior to being pursued by a police officer a person safely moves their vehicle off the roadway they cannot be found guilty of this charge.” In other words if a person realizes they are too impaired to drive, and they do the responsible thing by pulling over, and trying to sober up, or sleep it off, they cannot be found guilty of this charge.

In my case, my client had been drinking at a work party. After the party realizing he was too impaired to drive, he had a friend drive his car to the friends residence. He thought the additional time would help him sober up a little bit, but it didn’t. So instead of trying to drive his car home, he decided to drive approximately 2 blocks, and he pulled over and safely parallel parked his car on the shoulder of the road. This was a business/industrial area, this was a very wide road that was not heavily traveled. He wasn’t pursued by a police officer, he didn’t get into an accident, nothing. He safely pulled over, parked his car, turned the headlights off, took the keys out of the ignition and placed them in the center consul, and went to sleep.

About 3-4 hours later a do-gooder bicyclist riding home in Seattle around 2 am called 911 to report a suspected drunk driver. Even though my client wasn’t driving, wasn’t harming anyone, and hadn’t moved his car in over 3 hours, and was parked on the side of the road, the Seattle Police came and arrested him for Physical Control.

When I was retained on the case, I thought for sure my client was be offered a plea deal to this charge. Either a reduction to a lesser offense, or possibly even have it dismissed by the Prosecutor. Unfortunately for him though, his case was in a local municipal court, where cases rarely get dismissed, and DUI’s rarely get reduced. So after a couple of months of negotiating with the Prosecution we eventually decided to set the case for trial, and assert his legal defense. After all he had parked his car, and was safely off the roadway.

Now I have had 2 prior clients in in this exact same municipal court actually go to trial when charged with Physical Control, and assert this legal defense. And both clients were found NOT GUILTY by a jury. In those cases two different very good and knowledgable Judges allowed me to argue to the jury the client was safely off the roadway, and both times the jury agreed. So I felt confident in this case, that the exact same result would happen. After all the facts in those cases, and the facts in this case were virtually identical. In fact I would say those cases were more difficult because the keys were in the ignition, and in one case the car was running.

So on Tuesday morning we were sent out to trial. The Judge we got assigned to is just a Pro-Tem Judge, meaning he was just substituting in for the regular Judge. I have known this Judge since I began practicing law, and I have appeared in front of him many times. This Judge is not the best Judge when it comes to the law, and I have gotten some bad rulings from him in the past. But he was the best option at that time, so I chose to go forward with him. A decision that Im going to regret for the rest of my career.

So trial started, we picked the jury. I felt okay about them, not great. But I’ve done this so many times that I know you’re never going to get the perfect jury. Or very rarely does this happen. I mean there are always going to be jurors you don’t like, or you maybe have an uneasy feeling about but sometimes you just have to accept the panel or risk getting a juror that you really don’t like.

The Prosecution started their case in chief. They called two witnesses the do-gooder bicyclist, and the Seattle Police Officer (whom by the way I very much respect). After I was able to cross examine them I felt really good about the case. We were laying all the foundation for our defense, and I thought things were going really well.

After the Prosecution rested, my client chose to testify. He stipulated that he was impaired, but since we were asserting the legal defense you can do that. His testimony went great, I couldn’t have planned anything any better. After his testimony we rested, and took a recess for lunch. After lunch is when everything turned to shit. And I mean turned to shit.

So when get back from lunch, the first thing that happens completely blows my mind. The Prosecution tries to add a charge of DUI, in addition to the Physical Control charge. This was based on my client admitting he drove the two blocks. To be honest I was a bit surprised they were doing this, I wasn’t too concerned however because I know the law in this area, and the law doesn’t allow this sort of thing to happen. But what truly shocked me was the Judge initially seemed like he was going to allow this. I mean there are Washington State Supreme Court cases that say this is not permissible. This is not something that can happen. Well except in this local municipal court and with this Judge it can happen.

After the Prosecutor made their argument, the Judge looked at me, like I needed to say something. I couldn’t believe it, the Judge was asking me for my position on this and whether I objected. Are you kidding me? After I realized that this was going to happen, that this Judge was going to allow the Prosecution to add an additional charge after both parties rested. I politely pointed out to the Judge that there was case law on this point. That it is not permissible, and I gave him the case names. Finally after what seemed like an eternity the Judge agreed and denied the Prosecutions motion. Thankfully I had the cases in my trial folder, but this was just a precursor of what was to come of bad rulings.

Then came probably the worst legal decision I have ever seen or heard of in my entire legal career. The Prosecution stood up, and told the Judge they were objecting to the defense asserting this safely off the roadway defense. I had expected this, since this case was in Seattle, and things tend to be more difficult there than anywhere else, but I didn’t expect what happened next. The Judge agreed and said my client wasn’t off the roadway, and where he was parked wasn’t the shoulder.

I couldn’t believe it. As I said before I have litigated this exact same issue in in this local municipal court two times before (see those cases here). And I have always been able to argue this defense, and this case was exactly the same as the prior cases. So what was the difference. The Judge.

Now in Washington, case law states that the question of safely off the roadway is a question of fact for the trier of fact. Meaning the jury is to decide this, not the Judge. But for some reason the Judge didn’t want to follow this and said it wasn’t. In addition to that the Judge created this own definition of what a roadway, and what a shoulder was. Essentially the Judge created new law, and didn’t follow the existing law.

I tried to object. I argued as much as I could. I said this was a question of fact for the jury. I said that the City of Seattle cant have different traffic laws and definitions than the rest of the state (For example the Revised Code of WA which is the state statutes, doesn’t have a definition of shoulder and curb). The traffic code needs to be uniform throughout the state. In addition to that if a criminal statute is ambiguous a Judge is to interpret that ambiguity in favor of the defendant. This was our defense, this is what we built our entire case around. In the end he didn’t care, and subsequently we couldn’t argue this defense.

After this happened, we weren’t left with much to argue. As I said before this was the worst legal ruling I have ever seen or heard of. This runs completely afoul of the law, and violated my clients due process rights. I really hopes my client decides to appeal this ruling, because there is no doubt in my mind it will get reversed. I truly don’t believe he did anything wrong by pulling over and trying to sleep it off. This is exactly what the State Legislature wants people to do, which makes it so baffling he couldn’t argue this at trial.

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