WPIC 92.11 Actual Physical Control of a Motor Vehicle—Definition

Case law interpreting “actual physical control.” Case law has not yet developed a clear and consistent definition for the statutory term “actual physical control.” On the one hand, several courts have held that the term should be given its ordinary meaning, noting that the phrase has generally been defined as existing or present bodily restraint, directing influence, domination, or regulation. See State v. Smelter, 36 Wn.App. 439, 674 P.2d 690 (1984) (holding that the defendant could be convicted of being in physical control of a vehicle while intoxicated, even though he was found in the vehicle partly on the left shoulder of the highway and the vehicle was out of gas); In re Arambul, 37 Wn.App. 805, 683 P.2d 1123 (1984) (holding that the defendant's momentary grabbing of the steering wheel of the vehicle in which the defendant was riding comes within the ordinary meaning of the term “actual physical control,” even though the defendant did not have control of the gas, brake, or gearshift of the vehicle); see also McGuire v. City of Seattle, 31 Wn.App. 438, 642 P.2d 765 (1982), overruled on other grounds by State v. Votava, 149 Wn.2d 178, 66 P.3d 1050 (2003); State v. Beck, 42 Wn.App. 12, 707 P.2d 1380 (1985).

In Votava, the Washington Supreme Court addressed the definition of “actual physical control” in the context of the defense of being safely off the roadway:

State v. Votava, 149 Wn.2d at 184 (citations omitted). See also City of Yakima v. Godoy, 175 Wn.App. 233, 305 P.3d 1100 (2013) (defense of “safely off the roadway” is not available when there is no evidence showing that the defendant is the person who moved or directed the vehicle to be moved off the roadway).

Drafting a jury instruction. In particular cases, an instruction defining “actual physical control” may be helpful for jurors, as the term can be confusing in its application to the particular facts of the case. Particularly unclear is what the Legislature intended by adding the word “actual” to “physical control.”

State v. Votava, 149 Wn.2d 178, 66 P.3d 1050 (2003), as the most recent opinion from the Washington Supreme Court on this issue, is a natural starting point for drafting a definitional jury instruction. The WPI Committee, however, found that the Votava language does not easily lend itself to a broadly applying pattern instruction. The WPI Committee noted that: (1) Votava was addressing “actual physical control” in the context of the defense of being safely off the roadway, rather than the elements of the substantive crime; (2) the court stopped short of providing a full definition of the term, setting forth instead certain actions that qualify as actual physical control; (3) the Votava language could be unduly confusing for jurors, especially with regard to the concept of controlling a vehicle's lack of movement; and (4) the language seems overly broad in certain circumstances, in that it could be applied to a person who is drinking at home with the car parked outside.

In light of the foregoing, the WPI Committee believes it is best for these issues to be addressed by the practitioners on a case-by-case basis, taking care that any instruction drafted does not constitute a comment on the evidence.