LEGAL OPINION LETTER – LEGAL WRITING

ASSIGNMENT I

To: Ms. Debra Hansen

From: Jason MacLeod, Attorney at Law

Date: August 25, 2009

RE: The Charges Against You, File No. 08-16933

Dear Ms. Hansen,

Thank you for meeting with me this past week. In this letter, I will provide you
with my legal opinion and analysis so you can make a qualified decision
regarding the charges you face. I will first restate the facts, as I know them, to
confirm their accuracy. Next, I will provide you with an explanation of the law
as it applies in your case, and lastly, give you my opinion on whether conviction
of being in “physical control of a vehicle under the influence” is a potentiality.

On the night of the incident, you and your daughter, Ms. Burke, were attending
a friend‘s barbecue. At that event, you had several drinks knowing that your
seventeen-year old daughter was going to drive you home. After leaving the
barbecue, you and your daughter were heading home on a rainy freeway. As
your daughter turned to exit the freeway, the cell phone rang. Your daughter
attempted to answer the phone, despite your instructions, and she lost control of
the car on the wet road. The car spun and stopped halfway on the shoulder of
the off-ramp facing the wrong direction. You instructed her to back up the car
onto the shoulder whereupon you stated you wanted to drive. Your intent was to
get you and your daughter home safely. Your house was only a half-mile away.
After moving the car onto the shoulder, five feet from the freeway, your
daughter got out of the car while you maneuvered into the driving seat. The
keys were in the ignition, the transmission was in reverse, and you never took
your foot off the break. Here, the police officer came up to your car. You told
the officer that you only wanted to get home fearful for your daughter’s safety.
The officer requested an on-site Breathalyzer, which you refused; at this point,
the officer arrested you. The Breathalyzer later administered at the police station
showed a 0.16% blood alcohol content (BAC).

The State of Washington must prove two requirements to satisfy conviction.

First, that you had a BAC of .08% or more. Second, that you were in physical
control of the vehicle under the influence. Regrettably, your BAC level was
twice the legal limit. Therefore, you satisfy this first requirement. The second
requirement, being in physical control of vehicle, is our main area of focus.

To simplify Case law, proving physical control requires that you had the means
and intent to operate the vehicle. In your case, you were in the driver’s seat with
the keys in the ignition; the car was in working condition and running; your
expressed intent was to drive home; and the transmission was in reverse. Unless
the officer came to the scene, you would have driven home. Proving otherwise
would be difficult. If we were able to prove that you didn’t have physical
control of the vehicle, the charges would be dropped. Unfortunately, the State
will most likely establish that you had physical control. If we are unable to
prove otherwise, there is a defense that we can use to strike down the charge.

To establish this defense, we must prove to the jury that your vehicle was
“safely off the roadway” before the officer arrived on the scene. In your case,
the officer came upon your car after your daughter moved it to the shoulder.
Once your vehicle idled on the shoulder, we can assume the jury will conclude
your car was off the roadway. The next characteristic of this defense is proving
that your car was safely off the roadway.

The jury will decide if your car was safely situated by examining whether it
posed a danger to the public. A prior court decision found that a car idling in a
parking lot 20 feet from the road was safely off the roadway. In contrast,
another court decided that a car parked in a parking lot, but blocking traffic, was
not safely off the roadway. The difference between 20 feet and 5 feet is an area
of dispute, but your vehicle was not blocking traffic. Utilizing these past court
decisions in our favor is one strategy we would employ. The distinguishing fact
that differentiates your case with the ones above is the position of your car.
Your daughter‘s accident resulted in the car facing the wrong direction on the
freeway shoulder. Thus, questions presented to the jury will revolve around the
positioning of your car and if it posed a danger. For example, if the headlights
were on, could they have caused an accident by distracting or blinding other
drivers? Would it be dangerous if you resumed exiting the off-ramp beginning
your acceleration in the wrong direction? Questions such as these, if proved in
the affirmative, will damage our defense. Our objective is to prove that your car
was off the roadway, not blocking traffic, and not posing a danger to others.
What would be beneficial in proving that your vehicle was safely off the
roadway is securing testimony by the arresting officer stating your vehicle did
not pose a danger to the public. With this testimony, no jury could find that we
did not prove the defense. Without the officer’s testimony, the jury may
conclude the vehicle was not safely off the roadway. Facts they will use to
support this conclusion are: your vehicle was five feet from the freeway, your
vehicle was facing the wrong direction, and the maneuvers needed to merge
onto the freeway posed a risk to other drivers. Consequently, the success of this
defense is not an absolute. The state has a strong case against you.

The success of your case relies on persuading the jury that you were safely off
the roadway. Proving that defense would exonerate you, but the likelihood of
success is not in your favor. We cannot rely on the possibility of the officer’s
testimony; nor can we rely on the jury’s sympathy concerning your daughter‘s
safety; what we can rely on is my complete support for your family and your
interests. I will work with and for you in creating a strong case in your favor if
you so choose.

Please do not hesitate to call me with any questions you may have. Also, if there
are any misstatements of fact in this letter it is important that you contact me
when possible. Again, it was a pleasure meeting you and I look forward to your
call.

Most Sincerely,

Jason MacLeod