Washington State considers actual physical control a lesser offense of DUI
In a Washington DUI case, the Washington State Supreme Court, on December 31, 2008, held that actual physical control is a lesser offense of driving under the influence. The court rejected the argument that an "included offense" must be a "lesser included offense" and that the sentence on the lesser be less severe than on the original charge.
The case is WA DUI Case: Washington v. Nguyen. It is important to note the the defendant in this case, Ms. Nguyen, represented herself at the Supreme Court level. Usually, pro se (or pro per) representation, especially at the State's highest court, is a disaster waiting to happen. However, in this case it appears that Ms. Nguyen held her own and actually got the court to address her arguments. Even though she lost, for that reason, I congratulate her.
Relevant excerpts from the opinion:
Although some other states require that a "lesser included" offense have a lesser penalty, this does not mean that in Washington an offense cannot be an included offense if the two offenses have the same penalty.
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Simply because some other states have adopted an approach that considers whether the penalty is lesser does not mean that Washington's approach reflected in the Workman test is incorrect and must be changed.
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Additionally, Ms. Nguyen does not explain why a lesser penalty should be a requirement for an included offense. Inquiring into potential penalties has no bearing on whether the elements of the offense are necessarily included in the greater offense--the legal inquiry under the elements test used in Washington, nor does it disclose anything about whether the evidence supports the inference that the lesser crime was committed--the factual inquiry under the Washington test.
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Most importantly, the question of what constitutes an included offense is a matter of what is required by RCW 10.61.006. RCW 10.61.006 forecloses consideration of the penalty because it limits an included offense to one "the commission of which is necessarily included " in the charged offense (emphasis added), establishing that the sole inquiry is whether the included offense is necessarily committed when the greater offense is committed. The statutory language does not suggest in any way that the potential penalties are relevant to the determination. The word "lesser" does not even appear in the statute.
The Washington State Supreme Court's Conclusion:
There is no requirement under Washington law that an offense carry a potential penalty that is less than the charged crime in order to be an included offense for which a defendant may be convicted, even if not charged. We hold that being in physical control of a vehicle while under the influence of intoxicating liquor or any drug in violation of RCW 46.61.504 is an included offense of DUI. We affirm the Court of Appeals and uphold Ms. Nguyen's conviction for this crime.
Some thoughts about the case:
This case appears to be an accidental one in that Ms. Nguyen seems to have been grabbing at straws. It seems that the prosecutor at the trial level in this case may have inadvertently labeled the offense an "included offense" in his or her argument, and then Ms. Nguyen ran with it. Most states will allow a prosecutor in a DUI case to allege both driving and actual physical control, and then give the finder of fact a choice between the two. This case seems to solidify the fact that in Washington DUI cases, prosecutors may run with both theories with alleging separate counts.
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