Imagine driving home late one night after leaving a family or social event. You realize, belatedly, that you had too much to drink to drive safely and immediately look for a place to safely park off the road. You find a dark isolated parking lot and park your car. You leave your engine on, but put the transmission into park, so you can keep the heater and lights on. You try to sleep until you feel better. Later, you are startled awake by a police officer. While disoriented, you feel you have done nothing wrong because you did the right thing and got off the road.

But have you done the “right thing” in the “right way?”

Our State legislature is considering a change in state law that would make you a criminal for doing exactly what was described above.

Our State Legislature is considering making a drastic change to the “Safely off the Roadway" defense.” [HB 1504] This defense applies to DUI cases which are classified as a charge of “Physical Control.”  Unlike a typical "DUI," where it is alleged the defendant drove a vehicle impaired, a charge of “Physical Control” means the defendant possessed the ability to drive a vehicle when arrested even if they weren't caught in the act of driving. [RCW 46.61.504] The “Safely off the Roadway"defense applies where the defendant can prove he or she safely moved the vehicle off the roadway prior to being pursued by police. [RCW 46.61.504(2)] Our State Supreme Court has described the defense as an “incentive” for impaired drivers to exit the roadway. By raising the defense, a jury can find the defendant not guilty.

Prosecutors and police, however, want to change the defense to make it harder for defendants facing physical control charges to prevail at trial. They want to define “Safely off the Roadway” narrowly, to reduce the number of cases where it would be applicable. To accomplish this, they want to require defendants to do certain things to be eligible for the defense:

(a)    The suspected impaired person cannot be in the driver's seat of the vehicle;

(b)    The vehicle cannot be parked in an area designated for through traffic or in any place not authorized for motor vehicle traffic or parking; and

(c)    The vehicle's engine must be off.

Ryan Robertson testified before the Senate Law and Justice Committee on March 25, 2019, and urged the Senators to reject the proposed change. Ryan Robertson testified that this proposed definition is bad policy and will unfairly exclude people (like the example above) from being able to use the defense after doing the right thing by safely getting off the road as an impaired driver.

“The safely off the roadway defense has been on our books for almost forty years. This law works. I would ask this committee to consider that the success of this law is not based upon wins and losses in court; its success is determined by how many people we can get off the road as quickly as possible.

This law works because it is broad, not narrow; because it encompasses many situations, not a few. This amendment will restrict and exclude too many individuals from the opportunity to apply this defense [to their case] and will ultimately create the reverse incentive for individuals to simply continue driving.

We just had a very very cold winter. Individuals who may feel the need to pull off the road, but keep their heater on and keep their engine running to stay warm would be excluded from this defense. Anybody who may want to keep their engine on to power up their cell phone to make a phone call for a tow truck or for help will be excluded from this defense. Handicapped or injured drivers who cannot safely remove themselves from the driver seat will be excluded from this defense. We should be expanding, or at least not restricting, this defense. We should keep it as it is because it works. We have standards, and we should keep it in the hands of juries to decide on a case by case basis.”

-Ryan Robertson, testifying before Senate Law and Justice Committee, March 25, 2019.

[Click here to listen to testimony.  Ryan speaks at 59:30 into the testimony]

It is our sincere hope the committee members will reject this proposed change. The law works because it is simple and not burdened with arbitrary restrictions. The value of the defense is that it promotes the policy that impaired drivers should be encouraged to stop driving. The defense is the reward for doing the right thing. The proposed change loses sight of this. Sitting in the passenger seat (rather than the driver's seat), and having the engine off (as opposed to 'on') are merely traps to prosecute these people. These arbitrary distinctions should not decide who goes to jail, and who goes free.

Ryan Robertson appreciates having had the opportunity to speak before the committee along with lawyers William Kirk, Howard Stein, and Alex Uskoski. You can watch the entirety of this testimony by clicking here.

Robertson Law will continue to track any developments related to this proposed legislation, and will provide updates on this website.