In Oregon, there is a companion statute to the DUI law. It is against the law to be in actual physical control of a motor vehicle while under the influence of intoxicants. Most lawyers refer to this crime as “physical control.” The physical control statute helps prosecutors get around the proof problem presented by drunk people in cars who aren’t actually driving when the police contact them.
I once had a case in which the driver was contacted by police on the side of the highway. The driver was obviously intoxicated. She had a half empty bottle of liquor with her in the car. The prosecutor charged DUI. A judge threw the case out because there was no evidence of driving. The judge even said that the prosecutor should have charged physical control. Of course, that case was less good lawyering from me then just a mistake of the prosecutors. The case does show why the physical control statute is there though.
One interesting wrinkle about physical control is that there is an affirmative defense of safely off the roadway. This means that even if the prosecutor can prove all the elements of physical control, a person is not guilty if, prior to being contacted by the police, the person moved the car safely off the roadway.
This affirmative defense makes perfect sense from a public policy standpoint. As a society we don’t want to punish people who have done the responsible thing and gotten their car off the roadway rather than drive drunk. The affirmative defense also makes physical control cases very fun legally.
