State Of Washington v. Eliud Wambugu, 80226-7

On Dec. 6, 2015 Trooper Lynch found a silver Lexus stopped on the far right shoulder of I-5 with hazard lights on and a rear-driver-side flat; trunk open and spare tire outside; Wambugu standing at the rear with his hands in the trunk.
Lynch observed signs of intoxication (watery, bloodshot eyes; strong odor); Wambugu said he had been driving from Seattle to Kent and claimed a cousin had been with him.
Keys were on Wambugu; three empty beer cans and an empty hip flask were found in the car; breath tests later measured .168 and .172.
Wambugu was charged with DUI; his counsel requested a lesser-included instruction for physical control and a statutory "safely off the roadway" defense instruction under RCW 46.61.504(2).
The trial court refused the safely-off-roadway instruction (ruling that Wambugu would have to testify to show he caused the vehicle to be moved) and the jury convicted; the superior court affirmed; this appeal followed and the Court of Appeals reversed.

Issue	State's Argument	Wambugu's Argument	Held
Whether there was sufficient evidence to warrant a jury instruction on the "safely off the roadway" defense to the lesser-included physical-control offense	No evidence that Wambugu moved the car off the roadway (no testimony he drove or directed another to drive); therefore instruction not supported	Trooper’s testimony that Wambugu said he had been driving, plus the car being safely off the roadway, provided sufficient evidence to infer he moved it	Court reversed: viewing evidence in light most favorable to defendant, sufficient evidence supported the instruction and refusal was error
Whether a defendant must testify to invoke the safely-off-roadway defense	Trial court and State argued the defense is an affirmative one requiring the defendant to present testimony that he moved/parked the vehicle	Defendant can rely on State’s evidence and cross-examination; no requirement that he testify to obtain the instruction	Court held defendant may rely on the record (including State’s evidence); the trial court erred by requiring defendant to testify to obtain the instruction

State v. Walker, 136 Wn.2d 767 (de novo review of instruction refusals)
State v. Griffith, 91 Wn.2d 572 (defendant entitled to instruction supported by substantial evidence)
State v. O’Dell, 183 Wn.2d 680 (view evidence in light most favorable to defendant for affirmative defenses)
State v. Votava, 149 Wn.2d 178 (moving a vehicle off roadway can occur without driving it; entitled to safely-off-roadway instruction where defendant caused movement)
City of Yakima v. Godoy, 175 Wn. App. 233 (no instruction where intoxicated defendant merely sat in car and did not move it)
State v. Finley, 97 Wn. App. 129 (defendant may remain silent and rely on State’s evidence to support a defense instruction)
State v. Nguyen, 165 Wn.2d 428 (physical control is a lesser-included offense of DUI)
State v. Callahan, 87 Wn. App. 925 (benefit of all evidence applies when evaluating requests for instruction)
State v. Olinger, 130 Wn. App. 22 (same principle on assessing instructional evidence)