Attorney Matthew Swisher won a bench trial Oct. 27 for a client charged with physical control of a vehicle while under the influence, a gross misdemeanor punishable by up to one year in jail.

Clark County District Court Judge Chad Sleight acquitted Swisher’s client of the charge, ruling that Swisher had proven his client had been safely off the roadway at the time of his arrest.

Swisher’s client was arrested in 2021 after a Cowlitz Tribal Police officer noticed a car in the parking lot of the Cowlitz Crossing convenience store that was not in a parking space. It was 4 a.m. and the officer saw a male asleep in the driver’s seat. The officer could also see empty bottles of alcohol in the front passenger seat. The officer knocked on the driver’s window and asked the client to step out of the vehicle. He said when the man got out of the vehicle and spoke to him he could smell the odor of intoxicants and observed the man’s bloodshot, watery eyes, flushed face and slurred speech.

The client admitted he had been drinking. He refused to perform field sobriety tests.

Swisher, who was assisted by attorney Owen Sutanto, decided to waive a jury because the defense was primarily a legal argument. In a pre-trial brief he argued his client had not been in physical control and that he was safely off the roadway.

When the officer found his client asleep in the car, the vehicle was off. The keys were not even in the ignition, one detail prosecutors usually point to as evidence of “physical control.” The client had reclined the driver's seat to make it more comfortable to sleep, and that was a move that distinguished him from people found passed out behind the wheel, Swisher said. 

When the officer testified at trial, a Clark County deputy prosecutor asked him if the client’s vehicle had been in a no-parking area at the convenience store. The officer said no. The vehicle had been parked next to a curb near the parking spots, and had not been blocking traffic or preventing anyone from using the gas pumps. Under cross-examination, the officer said nobody had complained about the vehicle (he came across it during a routine patrol of the area) and that he moved it so it wouldn’t be towed rather than out of a safety concern. 

During closing argument, Swisher asked Sleight what he would have preferred his client to do in that situation. He said if his client was found criminally liable for deciding not to drive, it would be encouraging drunk drivers to take the risk of getting home safe and hurting someone rather that safely sleeping in their car.