In State v. Hendrickson, 140 Wash.App. 913 (Div. II, 2007), the Division II Court of Appeals seems to disregard our own Supreme Court’s rule of law that mere ownership of a vehicle – coupled with presence at the scene – is insufficient to establish corpus delicti. This was established in the Washington Supreme Court’s review of four Division II cases which were consolidated in City of Bremerton v. Corbett, 106 Wash.2d 569 (1986). The Court reviewed three DUI cases and one Physical Control case where the petitioners (Carr, Burkhart, Lebeda, and Corbett) had all prevailed at the trial court on corpus delicti arguments. While the Supreme Court found there was “additional” circumstantial evidence in each case connecting the defendants with control of the vehicles that were registered to them, the Court noted that proof of ownership alone is insufficient evidence for corpus delicti. Corbett at 579.
The Court found that the additional evidence putting Petitioner Carr in control of her vehicle was that the passenger was unable to start the car several times when asked to do so by the officer, even though the officer was able to start it, plus the fact that Carr was standing next to her vehicle when police arrived. Id.
The additional evidence putting Petitioner Burkhart in control of her vehicle was that she was last seen driving her vehicle earlier in the evening with the same passenger, and that the passenger was unfamiliar with the area they were traveling through. Id. The additional evidence putting Petitioner Lebeda in control of his vehicle was proof that the blood stains in the other car matched the injuries on the other driver, and Lebeda’s injuries were consistent with his involvement in an accident. Further, the only other person near the accident showed no signs of injury. Id. at 580.
The additional evidence putting Petitioner Corbett in actual physical control of his vehicle was that his car was stalled on the inside lane of a busy city street, Corbett was sitting in the driver’s seat, the ignition was on, and the keys were on the floor below him. Id.
In each of these cases, evidence beyond mere ownership and presence at the scene was required to prove corpus.
However, since Corbett, the Division II Court of Appeals in Hendricksond decided that “[t]he independent evidence…clearly provided prima facie proof of corpus delicti in respect to whether Hendrickson was driving the car…[namely, that] the car the officers found was registered to Hendrickson and Hendrickson was the only person in the area.” Hendrickson at 920. Prosecutors are using this to argue that registration and presence at the scene is enough, i.e., that a vehicle’s registration which names the person at the scene as the owner is sufficient circumstantial evidence for a prima facie case. If prosecutors are correct, it runs counter to the Corbett analysis.
There are a few ways to argue against Hendrickson. First is to argue that Hendrickson is not inapposite at all, that the prosecutor is wrong; Hendrickson does not stand for the proposition that registration and presence at the scene is enough. You can make this argument because the court stated that “Hendrickson was the only person in the area.” Hendrickson at 920. When Mr. Hendrickson was found by police, he was on his knees, crying on the side of a road above a ravine (the officer nearly missed hitting Hendrickson with his patrol car). Earlier, Mr. Hendrickson had lost control of his vehicle and went careening down into the ravine. He managed to climb/crawl his way out of the ravine and catch the attention of the officer who ended up arresting him for DUI. The court was saying that in addition to Mr. Hendrickson being the registered owner, the extra bit of circumstantial evidence that makes the prima facie case is that “there was no one else around”. This is different than saying he was near his car.
Unfortunately with most physical control cases, there is no one else around. Our clients are typically asleep, slumped over the wheel or are found trying to get their car started but for some reason can’t figure out how to do it.
Another way is to argue that Hendrickson is, of course, inapposite to Corbett. While there may not have been anyone else but Hendrickson around when the officer arrived, there was plenty of time between the accident and L.E. arrival for many people to come and go. So saying “there was no one else in the area” is the same as saying “I have no idea who came and went between the time of the accident and my arrival on the scene but, look, there’s the registered owner right there!” Even in Corbett, where the registered owner was found in the driver’s seat, the court wanted more than that.
I recently had a client charged with DUI (should have been charged as Physical Control) who was found in his car on the eastbound ramp from I-5 to the 520 bridge. The car had collided with the jersey barrier, broke its axle, and was stuck in the left lane, immovable (even though my client was attempting to get it moving by pressing the gas pedal).
Like Mr. Hendrickson, my client was the only person in the area of a vehicle registered to him. Now, one can think of many reasons why my client might be inside his stuck vehicle and still not be the person who had driven it there. Perhaps his girlfriend/roommate/friend had driven the vehicle because my client was too intoxicated to drive and, when the vehicle struck the wall and became disabled, that person agreed to go get some assistance while my client stayed with his vehicle (either because of his intoxicated condition or because many abandoned vehicles are vandalized or stolen). Perhaps he loaned his car to a friend who left it there after running into the barrier, and my client got a ride there and was attempting to get the vehicle moving when L.E. arrived. All of these hypotheses are consistent with innocence. The Hendrickson court made no such analysis as to why someone might be near a
vehicle registered to them, and jumped to the conclusion that those two sets of facts alone (proximity and registration) can only be consistent with guilt and not with innocence.
So, if we put aside the anomalous Hendrickson decision and focus on the consolidated cases in Bremerton v. Corbett, the most similar of those four cases to my client’s situation was Corbett, where Mr. Corbett was found sitting in the driver’s seat, car stalled on the inside lane of a busy city street, ignition on, and keys on the floor below him. What distinguished my client’s case from Corbett is that the Corbett court was looking for evidence to support corpus for a charge of Physical Control, not DUI. If we look at the additional evidence considered in Carr, Burkhart, and Lebeda that proved corpus for a charge of DUI, nothing like that was evident in my client’s case (no injuries, blood, witnesses,
To his credit, the judge did find that Corbett controlled (rather than Hendrickson), which was a temporary win for us. Unfortunately he went on to find evidence in addition to registration and proximity – my client was in the driver’s seat, with the seat belt on, with the engine running, he was depressing the accelerator, and he was the only person in the area. So factually this was not a very good test case and we lost the corpus motion. However, the State became convinced that they ought to amend to Physical Control, and they did.
Originally Published On The WACDL’s “DUI News” Newsletter” July 25, 2012