To: Ms. Debra Hansen
From: Jason MacLeod, Attorney at Law
Date: August 25, 2009
RE: The Charges Against You, File No. 08-16933
Dear Ms. Hansen,
Thank you for meeting with me this past week. In this letter, I will provide you with my legal opinion and analysis so you can make a qualified decision regarding the charges you face. I will first restate the facts, as I know them, to confirm their accuracy. Next, I will provide you with an explanation of the law as it applies in your case, and lastly, give you my opinion on whether conviction of being in “physical control of a vehicle under the influence” is a potentiality.
On the night of the incident, you and your daughter, Ms. Burke, were attending a friend‘s barbecue. At that event, you had several drinks knowing that your seventeen-year old daughter was going to drive you home. After leaving the barbecue, you and your daughter were heading home on a rainy freeway. As your daughter turned to exit the freeway, the cell phone rang. Your daughter attempted to answer the phone, despite your instructions, and she lost control of the car on the wet road. The car spun and stopped halfway on the shoulder of the off-ramp facing the wrong direction. You instructed her to back up the car onto the shoulder whereupon you stated you wanted to drive. Your intent was to get you and your daughter home safely. Your house was only a half-mile away. After moving the car onto the shoulder, five feet from the freeway, your daughter got out of the car while you maneuvered into the driving seat. The keys were in the ignition, the transmission was in reverse, and you never took your foot off the break. Here, the police officer came up to your car. You told the officer that you only wanted to get home fearful for your daughter’s safety. The officer requested an on-site Breathalyzer, which you refused; at this point, the officer arrested you. The Breathalyzer later administered at the police station showed a 0.16% blood alcohol content (BAC).
The State of Washington must prove two requirements to satisfy conviction. First, that you had a BAC of .08% or more. Second, that you were in physical control of the vehicle under the influence. Regrettably, your BAC level was twice the legal limit. Therefore, you satisfy this first requirement. The second requirement, being in physical control of vehicle, is our main area of focus.
To simplify Case law, proving physical control requires that you had the means and intent to operate the vehicle. In your case, you were in the driver’s seat with the keys in the ignition; the car was in working condition and running; your expressed intent was to drive home; and the transmission was in reverse. Unless the officer came to the scene, you would have driven home. Proving otherwise would be difficult. If we were able to prove that you didn’t have physical control of the vehicle, the charges would be dropped. Unfortunately, the State will most likely establish that you had physical control. If we are unable to prove otherwise, there is a defense that we can use to strike down the charge.
To establish this defense, we must prove to the jury that your vehicle was “safely off the roadway” before the officer arrived on the scene. In your case, the officer came upon your car after your daughter moved it to the shoulder. Once your vehicle idled on the shoulder, we can assume the jury will conclude your car was off the roadway. The next characteristic of this defense is proving that your car was safely off the roadway.
The jury will decide if your car was safely situated by examining whether it posed a danger to the public. A prior court decision found that a car idling in a parking lot 20 feet from the road was safely off the roadway. In contrast, another court decided that a car parked in a parking lot, but blocking traffic, was not safely off the roadway. The difference between 20 feet and 5 feet is an area of dispute, but your vehicle was not blocking traffic. Utilizing these past court decisions in our favor is one strategy we would employ. The distinguishing fact that differentiates your case with the ones above is the position of your car. Your daughter‘s accident resulted in the car facing the wrong direction on the freeway shoulder. Thus, questions presented to the jury will revolve around the positioning of your car and if it posed a danger. For example, if the headlights were on, could they have caused an accident by distracting or blinding other drivers? Would it be dangerous if you resumed exiting the off-ramp beginning your acceleration in the wrong direction? Questions such as these, if proved in the affirmative, will damage our defense. Our objective is to prove that your car was off the roadway, not blocking traffic, and not posing a danger to others.
What would be beneficial in proving that your vehicle was safely off the roadway is securing testimony by the arresting officer stating your vehicle did not pose a danger to the public. With this testimony, no jury could find that we did not prove the defense. Without the officer’s testimony, the jury may conclude the vehicle was not safely off the roadway. Facts they will use to support this conclusion are: your vehicle was five feet from the freeway, your vehicle was facing the wrong direction, and the maneuvers needed to merge onto the freeway posed a risk to other drivers. Consequently, the success of this defense is not an absolute. The state has a strong case against you.
The success of your case relies on persuading the jury that you were safely off the roadway. Proving that defense would exonerate you, but the likelihood of success is not in your favor. We cannot rely on the possibility of the officer’s testimony; nor can we rely on the jury’s sympathy concerning your daughter‘s safety; what we can rely on is my complete support for your family and your interests. I will work with and for you in creating a strong case in your favor if you so choose.
Please do not hesitate to call me with any questions you may have. Also, if there are any misstatements of fact in this letter it is important that you contact me when possible. Again, it was a pleasure meeting you and I look forward to your call.