WPIC 92.15 Physical Control While Under the Influence—Defense—Safely Off the Roadway

Use this instruction when the defense of safely off the roadway is before the jury. If there is a dispute as to whether the vehicle is within the roadway, then a definition of “roadway” may be added based on RCW 46.04.500 or other applicable law.

Do not give this instruction unless proposed by the defense.

RCW 46.61.504(2); RCW 46.61.503. It has long been a defense to the charge of physical control of a vehicle while under the influence if, prior to being pursued by a law enforcement officer, a person has moved the vehicle safely off the roadway. Effective September 26, 2015, pursuant to RCW 46.61.503(3), it is also a defense to the charge of being a minor in physical control of a motor vehicle under the influence of alcohol or drugs.

Right of defendant to forgo an affirmative defense. This instruction should be given if requested by the defendant and supported by the evidence. The defense of “safely off the roadway” is an affirmative defense to be raised by the defendant. A court should not instruct the jury on an affirmative defense over the objection of the defendant. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975); State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013) (a defendant's right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections); State v. Coristine, 177 Wn.2d 370, 376, 300 P.3d 400 (2013). For additional discussion, see WPIC 14.00 (Defenses—Introduction). A defendant is entitled to this instruction if any evidence presented at trial supports the defense, regardless of the party who presented it. A defendant is not, however, entitled to this instruction solely based upon an absence of evidence. State v. Fisher, 185 Wn.2d 836, 851–52, 374 P.2d 1185 (2016) (jury should be instructed on the defense even if the evidence in support is weak, inconsistent, or of doubtful credibility).

In State v. Votava, 149 Wn.2d 178, 184, 66 P.3d 1050 (2003), the court held that the safely off the roadway defense is available to a defendant regardless of whether the defendant personally drove the vehicle safely off the roadway or directed another to do so, because “a person may move a vehicle without driving it” by directing another to move the vehicle. The court rejected a requirement that the defendant must personally drive the vehicle off the roadway in order to be eligible for the defense, so long as the evidence shows that the defendant caused the vehicle to be moved off the roadway. See also City of Yakima v. Godoy, 175 Wn.App. 233, 305 P.3d 1100 (2013) (trial court properly refused to instruct the jury on the safely off the roadway defense where there was no evidence that the defendant moved or caused the vehicle to be moved off the roadway).

Even if the State can prove every element of the actual physical control charge, acquittal is appropriate if the defendant can show, by a preponderance of the evidence, that the defendant moved the vehicle safely off the roadway. State v. Votava, 149 Wn.2d at 187–88. The defendant has the burden of proving by a preponderance of the evidence that the vehicle was moved safely off the roadway. State v. Votava, 149 Wn.2d at 187–88.

The safely off the roadway defense only applies to prosecutions for being in physical control, not to DUI. Effective September 26, 2015, pursuant to RCW 46.61.503(3), the defense of safely off the roadway also applies to the charge of being a minor in physical control under the influence of alcohol or drugs. A trial court's refusal to instruct the jury on the defense in a DUI prosecution does not deny the defendant equal protection of the law. State v. Beck, 42 Wn.App. 12, 707 P.2d 1380 (1985); State v. Hazzard, 43 Wn.App. 335, 716 P.2d 977 (1986).

In City of Edmonds v. Ostby, 48 Wn.App. 867, 740 P.2d 916 (1987), the court held that although the defendant's vehicle was in a private parking lot, the defendant was not “safely off the roadway” because the evidence indicated that the defendant's vehicle was not in a parking stall and that the defendant had passed out behind the wheel of his vehicle due to intoxication with the motor running and the transmission in drive. The Ostby court refused to extend to physical control prosecutions the holding in State v. Day, 96 Wn.2d 646, 638 P.2d 546 (1981), which interpreted the “elsewhere throughout the State” language of RCW 46.61.005 under the unique facts of the case to disallow a DUI prosecution for acts occurring on private property where Day was posing no threat to the public.

The term “roadway” is defined in RCW 46.04.500: “Roadway means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder even though such sidewalk or shoulder is used by persons riding bicycles. …”

A vehicle is “safely off the roadway” when the situation no longer poses a danger to the public. See City of Edmonds v. Ostby, 48 Wn.App. at 870–71 (“Whether the vehicle was ‘safely off the roadway’ is a factual issue to be decided by the trier of fact … Ostby had passed out behind the wheel of his vehicle due to his intoxication; the motor was running and the transmission was in drive. This situation posed a danger to the public. Ostby did not comply with the defense to the statute that he pull his vehicle safely off the roadway.”); and State v. Votava, 149 Wn.2d at 185, which says: