Robertson Law Blog

Creative Trial Tactics Result in the Dismissal of a DUI Case.

Posted by Andrea Robertson on Apr 22, 2015 | 0 Comments

Robertson Law was happy to recently see a client's DUI dismissed during a recent trial in King County.   The procedural history of this case was a bit unusual, and illustrates the importance of using creative means to ultimately reach a favorable resolution.

Washington has two charges which are similar but distinct. 

A charge under RCW 46.61.502 for “Driving Under the Influence” alleges that a person drives a vehicle while the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug (or a combination thereof); OR within two hours after driving: had an alcohol concentration of 0.08 or higher or a THC concentration of 5.00 or higher.

RCW 46.61.504 is a lesser included charge of “Physical Control of a Vehicle Under the Influence” which makes the same allegations, but involves only being in “actual physical control of a motor vehicle” rather than driving the vehicle.

The State of Washington filed a charge of DUI against our client, who was found by civilians parked on the shoulder at the end of an off-ramp.  She had vomited and appeared ill.  One civilian was concerned and 911 was called.  After multiple motions and attempts to negotiate, the State refused to amend the case to Physical Control, in a clear bid to deny us the opportunity to argue that our client had moved her car “safely off the roadway,” which is a defense to the charge of Physical Control, but is not an available defense to DUI.

At trial, the judge granted Andy's request for a "lesser included" charge of Physical Control.  The reasons why will become clear in a moment.

Because the State had chosen to charge our client with DUI, it could do so through two “prongs.” The State could show that the DUI was committed because our client's breath test exceeded the “legal” limit of .08 within two hours of driving.  Or, it could show that the defendant had been “affected” by her alcohol consumption so that it impaired her ability to drive.  So the State needed to prove that our client's breath alcohol levels exceeded .08 within two hours of driving, or they needed to prove that her driving had been impaired by the consumption of alcohol. 

At the conclusion of the State's case in chief, we challenged the State's ability to prove the aspects of driving solely through our client's admissions about driving her car.   Andy requested a dismissal of the DUI, under the doctrine of corpus delicti.  Washington will not permit a conviction based solely upon confession, there must be other corroborating evidence to support the confession.  See our previous blog entry about this concept (here).  The Court agreed that the State had no corroborating evidence of our client (a) being impaired while driving; and (b) driving within 2 hours of a breath test --- except through her own confessions.

While the State eventually conceded that they had no corroborating evidence of driving within the 2 hour window, they argued that they had corroboration of our client's impairment while driving, based on "reasonable inferences."  The Court disagreed.  After a lengthy argument, the court dismissed the DUI. 

After that ruling, Andy requested a dismissal of the Physical Control, because the State hadn't disproved the “Safely off the roadway” affirmative defense.  The judge agreed very quickly on that one, as both civilians and the arresting officer all established that our client was clearly off the roadway.   Our plan was to argue for a directed verdict if the State somehow overcame the corpus difficulties involved in the DUI prosecution.  But ultimately the case was dismissed without requiring us to give the case to the jury for deliberations.

If you are facing a DUI or related charge, we are happy to provide a consultation to discuss your unique situation.  If we agree to accept your case, you can rest assured that we will work for the very best possible outcome of your case, using our decades of experience to help you.

About the Author

Andrea Robertson

Andy is a passionate, creative and effective criminal defense lawyer who is willing to fight on your behalf. She has honed her skills since 1998, and has developed a proven track record of creative, vigorous, and effective advocacy for clients throughout the State of Washington. Her practice includes all criminal charges. This includes felonies, misdemeanors, and driving-related charges such as DUI or vehicular assault/homicide.


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Robertson Law


The attorneys of Robertson Law have a proven track record of creative and effective advocacy for clients throughout the state of Washington.

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Andy Robertson has a proven track record of creative and effective advocacy for clients facing criminal charges throughout the state of Washington. Ryan Robertson's practice focuses exclusively on high-quality creative appellate representation in criminal and administrative matters, as well as expungements, vacation of records, and petitions to seal.