State v. VotavaState v. Votava
Defendant Daniel Votava claimed error in his jury trial conviction for actual physical
FACTS
According to his trial testimony, Votava went drinking with friends at the Goodtimes Pub in Spokane in mid-April 1999. Afterward, he agreed to give his friend a ride to her car, but he said he let her drive because hе felt ill. During the ride to her car, Votava suddenly thought he was going to be sick. He testified that when he asked her to pull over, she stopped in a parking lot not far from another lot in which she had left her car, and he got out. Votava testified that when he climbed back into the passenger‘s seat, he noticed that his friend had not closed the driver‘s side door when she left for her car. Therefore, he walked around tо the driver‘s seat, reclined the seat, and went to sleep. Votava said he intended to wait there until he could call his son.
A state trooper noticed the car parked facing into traffic in the parking lot‘s driveway but did not approach it at first. After another motorist told him she could not see a driver in Votava‘s car, the trooper returned to investigate. The lights were on, and the engine was running. The trooper woke Votava, who admitted he had been drinking. The trooper administered a field sobriety test, which Votava failed. Votava agreed to breath testing; his alcohol concentration registered at .166 and .170. The trooper arrested Votava for driving under the influence of alcohol (DUI) in violation of
PROCECURAL HISTORY
At trial before the Spokane County District Court, Votava requested that the court instruct the jury regarding the defense of moving the vehicle safely off the roadway under
ISSUE
Is a defendant who has been charged with being in physical control of a vehicle while under the influence of alcohol entitled to the defense found in
ANALYSIS
At trial, Votava requested that the trial court instruct the jury regarding the defense under
No person may be convicted [of actual physical control of a motor vehicle while under the influence of intoxicating liquor] under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.
[T]he line of this affirmative defense is not available in the case of the intoxicated person assumes [sic] physical control without moving the vehicle, to me it takes that defense out of the case.... I have not included [the defense instruction] based on McGuire, I don‘t think affirmative defense applies in this case.... I am not going to permit that defense to be raised on the McGuire case because I don‘t think it is appropriate given that language. Initially I thought it was something that could go to the jury, but after reading that, I don‘t believe it is appropriate.
Clerk‘s Papers (CP) at 170-71.
On appeal, the superior court held that the defense was not precluded by the fact that the defendant did not drive the car because “thе defense doesn‘t say `and the defendant drove the motor vehicle off the roadway.’ It says, `The vehicle was moved off the roadway.’ ” CP at 227. The Court of Appeals reversed, holding that
At the heart of this case is the meaning of the language in
The language “the person has moved the vehicle” is clear and not defined by statute. Therefore, we consider its ordinary meaning, which we сonclude can encompass methods other than driving. Therefore, we reject the State‘s argument that the statutory language requires that the defendant drive the car in order to assert the defense. Such a construction would require us to change the language from “has moved” to “has driven.”
“Has moved” in
Allowing a defendant who did not drive to present the defense better advances the purposes of the statute. The language of a statute should be construed to carry out, rather than defeat, the statute‘s purpose. See Miller v. Paul Revere Life Ins. Co., 81 Wash.2d 302, 310, 501 P.2d 1063 (1972). The actual physical control statute was enacted to protect the public by (1) deterring anyone who is intoxicated from getting into a car except as a passenger, аnd (2) enabling law enforcement to arrest an intoxicated person before that person strikes. Smelter, 36 Wash.App. at 444, 674 P.2d 690.
If a person is required by law to drive while intoxicated before invoking the defense, as the Court of Appeals held and the State argues, the purposes of the statute are defeated. First, someone who personally
The State cites an out-of-jurisdiction case in support of its argument that a person must personally drive the vehicle safely off the roadway. The Supreme Court of Nevada, in a footnote, purports to announce the purpose of the defense in
Under the Court of Appeals’ reading, the defendant who did not personally drive the vehicle off the road has no recourse to the defense. However, the actual physical control defendant who admits to driving the vehicle off the road might be charged with DUI under
Recently, the Court of Appeals, Division Two reviewed this defense. City of Tacoma v. Belasco, 114 Wash.App. 211, 56 P.3d 618 (2002). In Belasco, the defendant determined that he was too drunk to drive when he exited a bar. He decided not to leave the bar‘s parking lot. A city police officer found him there, asleep in his car, and charged him under
Making the defense available only to the defendant who personally drove the vehicle off the roadway creates an incentive for intoxicated persons to drive. A statute must not be construed in such a way as to render “unlikely, absurd, or strained” results. Elgin, 118 Wash.2d at 555, 825 P.2d 314. Requiring that a person endanger the public by committing a more serious crime before being allowed to argue that he or she moved the vehicle safely off the roadway is just such a result. In Votava‘s case, he would have had to drive out of the parking lot, travel on the public road, and then pull safely off the roadway.
Finally, we reject the argument that because Votava took control after the car was off the roadway, the defense is not available to him. The Court of Appeals stated that “a person who directs another person to move a vehicle off the roadway, but who then regains actual physical control of the vehicle, remains a threat to the public because the act of regaining control suggests an intent to move the vehicle back onto the roadway.” Votava, 109 Wash.App. at 536, 37 P.3d 296.4 This argument fails to dispose of the issue. It goes to the elements of the charge, rather than the defense. The very nature of this affirmative defense is that, although the State can prove every element of the actual physical control chаrge, acquittal is appropriate if the defendant can show, by a preponderance of the evidence, that the defendant moved the vehicle safely off the roadway. See State v. Riker, 123 Wash.2d 351, 367-68, 869 P.2d 43 (1994) (affirmative defense admits defendant committed criminal act but pleads an excuse).
In addition, timing is not material to the defense inquiry, except to the extent that the person moved the vehicle prior to being pursuеd by a law enforcement officer.
Moreover, it is illogical to draw a distinction between the person who remains in control after personally driving off the roadway as opposed to the person who regains control after the car has been moved off the road at his direction. There is no meaningful difference between the danger posed by the persons in these two situations. Both persons arguably demonstrate an intention to return to the roadway. Both arguably may be charged with actual physical control. Both may present the defense to the jury, whose province it is to determine whether the facts and circumstances exculpate the defendant.
CONCLUSION
We hold that a defendant who has been charged with being in physical control of a vehicle while under the influence of alcohol is entitled to the defense found in
JOHNSON, SANDERS, BRIDGE, CHAMBERS, OWENS, and FAIRHURST, JJ., concur.
MADSEN, J., concurring.
I agree with the majority that the trial court‘s refusal to instruct the jury on the defense of safely moving a vehicle off the roadway was erroneous because it was based upon an incorrect legal interpretation of
Generally, the question whether a vehicle is safely off the roadway is a question of fact for the trier of fact. City of Edmonds v. Ostby, 48 Wash.App. 867, 870, 740 P.2d 916 (1987). The parties agree on the following facts: Once the passenger left the car and Mr. Votava moved into the driver‘s seat and fell asleep, the vehicle was parked facing traffic in the parking lot‘s driveway, and appeared to be partially on a sidewalk. The car‘s lights were on and the engine was running.
Under similar facts, the Court of Appeals in Ostby affirmed the district court‘s determination in a stipulated facts trial that the vehicle in that case was not safely off the roadway. Thе vehicle was in a parking lot with its headlights on, the engine was running, and the transmission was in drive. Id. at 868, 740 P.2d 916. The car was situated in the middle of the roadway blocking access to adjoining parking areas and buildings. Id. The driver was passed out behind the wheel. Id.
While the issue in Ostby was whether the evidence supported the trial court‘s determination that the vehicle was not safely off the roadway, I believe the facts there, and in Votava‘s case, raise an additional issue: whether the evidence is sufficient to warrant giving an instruction on the defense at all. A defendant raising an affirmative defense must offer sufficient evidence to justify giving the instruction. E.g., State v. Janes, 121 Wash.2d 220, 236-37, 850 P.2d 495, 22 A.L.R.5th 921 (1993) (whether instruction on self-defense warranted); State v. Buford, 93 Wash.App. 149, 967 P.2d 548 (1998) (whether unwitting possession defense instruction warranted); State v. Trujillo, 75 Wash.App. 913, 883 P.2d 329 (1994) (whether entrapment instruction justified).
The parties, however, have not raised this issue on this discretionary review, and there may be other evidence, not included in the record on review, that would have a bearing on this question. I write separately merely to point out that the majority opinion should not be read to foreclose the trial court‘s consideration of this question on remand. The majority simply holds that the trial court erred in concluding that the instruction could not be given because Votava did not himself move the vehicle—a different question entirely.
I concur.
MADSEN, J., and FAIRHURST, J., concur.
ALEXANDER, C.J., dissenting.
The majority concludes that Votava was entitled to the instruction, based primarily on its determination that one can move a car off a roadway without personally driving it. It reasons that Votava “moved the vehicle off the roadway when he direсted his friend to drive into the parking lot.” Majority at 1053. While I agree with the majority that one can move a vehicle without personally driving it, I do not agree that there was
The majority buttresses its decision by talking about the purpose behind the physical control statute, suggesting that this purpose is defeated if the defense is not available in situations like the instant. While the majority‘s speculation regarding the legislature‘s thinking may be correct, we should resist thе temptation to glean its motive in enacting a statute when the language it used in the enactment makes its purpose clear and unambiguous.
In sum, the trial judge who heard the evidence in this case rightly concluded that there was no factual basis for giving the instruction requested by the defendant. While the trial court incorrectly determined that the defendant has to personally drive the vehicle off of the road in order to have the benefit of the statutory defense, it did not err in declining to give the instruction here for the reason that Votava was not the person who “moved” the vehicle from the road. Because he did not move the vehicle he cannot avail himself of the statutory defense. We should, therefore, reverse the Court of Appeals and reinstate the defendant‘s conviction for being in physical cоntrol of a vehicle while under the influence of alcohol. Because the majority does otherwise, I dissent.