SAFELY OFF THE ROADWAY

Few people know that in many states, being in physical control of a vehicle, even when it is not running, is a crime with the same penalties as a DUI (Driving Under the Influence).  The question of whether one is “in physical control” is not clearly defined in the statutes.  The basic idea is whether the person is in a position to drive off while still drunk.  This is a delicate matter, as we cannot punish people for crimes they have not committed.  So states added “physical control” as a way to criminalize sitting in your car.  Various judges have ruled that guilt depends on “the totality of the circumstances” so the jury ends up deciding as a matter of fact, not law, whether the particular would-be driver was in physical control of the vehicle.

Let’s take one case.  Was the person under the influence?  Yes.  Were they in the driver’s seat?  Yes.  Keys in ignition?  Yes.  Car running?  No.  What were they doing?  Sleeping.  So how did the police even find them?  A concerned neighbor called to report someone slumped over the wheel of a car.  They gave a description of the car and the license plate.  They gave the location, and the police came to do a welfare check.

The rest is police report history.  You can imagine it includes all the regulars.  While approaching vehicle, this officer noticed a strong odor of alcohol coming from open window.  Suspect fumbled around looking for items in car, which (legally) gave rise to officer concern for safety, in turn allowing officer to have suspect leave car, and to detain for investigation.  Officer then notes bloodshot, watery eyes, unsteady gait, and more.   Suspect is arrested for Physical Control.

But wait.  There is a defense to Physical Control.  It is called “safely off the roadway.”  If a person causes their vehicle to be safely off the roadway, even if they are drunk and in apparent possession and control of a vehicle, if the jury believes it is more likely than not that they were safely off the roadway, then they are not guilty of the crime.

There is an obvious policy reason for this, just like most governments finally decriminalized abandoning babies, so that desperate mothers could leave their newborns on a doorstep instead of killing them or leaving them in a dumpster.  We as a society really WANT drunk drivers to pull over and stop driving!  Get off the road.  Ideally, of course, we want zero unwanted pregnancies and zero drunk or drugged drivers.  But practically speaking, let’s move toward harm reduction.

People may or may not agree with this law, or this defense.  But one of the first questions during jury selection is whether the potential juror will be able to apply the law as it is given to them and not substitute their personal opinion as to what they think the law is or the law should be.  Most jurors state under oath that they will be able to uphold the law.

Remember that the court does not give the law or the legal instructions to the jury until the end of trial, so during selection, the only thing the jurors hear is what the crime charged is, and the elements of the crime.  Not any potential defenses.  And as usual, a few potential jurors had never heard of this being a crime.

Halfway during jury selection, one potential juror burst out in a loud voice, “I’m really angry!  How can there be a law like this, and nobody knows about it?  I’ve never heard of it in my life!  If I get drunk in a bar and it closes, and I realize I am too drunk to drive, what am I supposed to do?  You’re saying I can’t sit in my car and call a friend and wait in my car for them to pick me up?  I am supposed to stand outside on the street drunk at 2:00 a.m.?  Because the bar is closed, and they’re not gonna let me wait inside! That doesn’t make any sense!  I thought you wanted people to be safe!  How does that make anybody safe?  Aren’t the laws supposed to make us safe?”

She didn’t get picked for the jury, but a few other jurors wiggled in their seats while she spoke up, and I believe her opinion stayed with them.  The jury came back with Not Guilty.  Even with keys in the ignition.  They determined that the suspect was safely off the roadway, right where they wanted him to be.