Switching Seats is a DUI?

A DUI police officer saw a car weaving down the highway and stopped it. Once the car was stopped, Ellen Rix, who was in the passenger seat, switched places with Veselina Stoilova, who was the driver. Later, Ellen would testify that she did this because Veselina she knew that Veselina had a suspended license and Ellen was afraid that Veselina would be deported. The officer determined that Ellen was drunk and arrested her for DUI although she had not driven the car and did not touch the wheel or any mechanical part of the car (however the car was running.) Was Ellen guilty of DUI? The Virginia Court of Appeals affirmed the trial court’s finding that Ellen was guilty of “operating a motor vehicle” under the influence of alcohol under Virginia law, reasoning that “Rita seized actual physical control of the vehicle when she switched seats with Stoilova in an effort to represent herself as the operator of the vehicle.” She was “keeping the car in restraint or in position to regulate its movements.” In other words, she was “regulating the movement of the vehicle” by sitting in the driver’s seat and not making it move forward. Sounds like a stretch. Although it should not have been a factor, the fact that Ellen had a prior DUI might have played a part in the court’s ultimate finding.

Could this scenario result in a DUI conviction under Washington law? Washington DUI law criminalizes not only drunk driving but also being “in physical control of a motor vehicle” while under the influence of alcohol. (RCW 46.61.504) That statute reads in pertinent part as follows:

RCW 46.61.504
Physical control of vehicle under the influence.

(1) 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:

(a) And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW 46.61.506; or

(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or

(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.

There is no reported DUI decision in Washington State jurisprudence dealing with this specific factual scenario. However, the Virginia case was not a jury trial; the DUI defense attorney tried this as a “bench trial” where a judge, not a jury, decides guilt or innocence. (Some states only allow a bench trial for a DUI case – in Washington State a citizen accused of DUI is entiteld to a jury trial as a state constitutional right.) In Washington State, an experienced Seattle DUI attorney would almost certainly argue such a case to a jury who would be more likely to determine that the facts of this case do not amount to the crime of DUI.

If you or a loved one needs help with a Seattle DUI or a DUI charge anywhere in Washington State, contact Seattle DUI attorney Jon Scott Fox.
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