I wasn't driving! How can I be charged with a DUI?
If you are here because you were charged with a DUI even though the officer has no proof you were driving, you have been charged with Physical Control Under the Influence. This means the officer cannot prove you were the driver, but you were probably at least seen behind the wheel of the car or asleep behind the wheel. The officer doesn't necessarily have to even prove the car was running or the keys were nearby.
How can the prosecution charge me with this? It is because the legislature enacted a lesser included offense to DUI, called Physical Control. The idea was to protect the public from persons who were intoxicated or high behind the wheel and either passed out at a stop light, drive thru, in a parking lot blocking traffic, etc. but the cop didn't see you actually "drive under the influence."
The specific statute that allows for this type of charge is RCW 46.61.504. You can read that statute here.
How can they prove I was in Physical Control?
Although there is no specific definition given to a jury, the court will instruct the jury as follows:
"A person commits the crime of being in actual physical control when he or she has actual physical control of a motor vehicle while he or she is under the influence of or affected by intoxicating liquor or while he or she has sufficient alcohol in her body to have an alcohol concentration of 0.08 or higher within two hours after being in actual physical control shown by an accurate and reliable test of the person's breath." WPIC 92.01
It is then up to each side to argue what is "actual physical control."
What if I realized I wasn't safe to drive and exited the roadway?
This is what is known as being "Safely Off the Roadway." It is a defense to a Physical Control case that an individual has safely moved their vehicle from the roadway.
The same statute, RCW 46.61.504 subsection (2) says this "No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway."
All officers, deputies and troopers know the defense so they will try like heck to say you were not safely off the roadway even when you did the right thing by moving off the road. They will allege a tire was slightly touching the fog line or that your mirror was sticking out even though the car was on the shoulder.
You need an experienced Seattle DUI Attorney to assist you if you have been charged with Physical Control Under the Influence.