WA Legal Roundup
One new opinion out of the Supreme Court. It was a 9-0. This is a fairly big case for DUI Defense attorneys.
In an opinion that shouldn't really come as a shock to anyone, the Washington Supreme Court held that physical control under the influence is a lesser included offense of driving under the influence. Nguyen was charged with DUI. She had partially pulled off the side of the road and had been drinking and using a stimulant (search incident to arrest revealed cocoaine). The State argued during trial that physical control was a lesser included.
The court first gave the test for determining lesser included:
First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed." [State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)]. As a threshold determination apart from the Workman test, the included offense must arise from the same act or transaction supporting the greater offense that is charged. State v. Porter, 150 Wn.2d 732, 738-40, 82 P.3d 234 (2004).
Nguyen conceded that factually and legally it was included, but attempted to add a new prong: that the lesser included offense have a lesser penalty than the crime charged, a position adopted by other state. Physical Control and DUI both potentially carry the same penalties as gross misdemeanors. The court noted that, statutorily, RCW 10.61.006 provides only the legal and factual prongs, but not a lesser penalty prong. In addition, a treatise noted that states that adopted Washington's way of doing things were listed in a separate category from those that adopted the lesser penalty rationale.
The full holding is as follows:
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.