State v. Votava , 149 Wash. 2d 178 ( 2003 )

Madsen, J.

(concurring) — I agree with the majority that the trial court’s refusal to instruct the jury on the defense of safely moving a vehicle off the roadway was erroneous because it was based upon an incorrect legal interpretation of RCW 46.61.504(2), i.e., that the defendant must personally drive the vehicle. It is possible that an alternate ground exists for refusing to give the instruction, however.

Generally, the question whether a vehicle is safely off the roadway is a question of fact for the trier of fact. City of Edmonds v. Ostby, 48 Wn. App. 867, 870, 740 P.2d 916 (1987). The parties agree on the following facts: Once the passenger left the car and Mr. Votava moved into the driver’s seat and fell asleep, the vehicle was parked facing traffic in the parking lot’s driveway, and appeared to be partially on a sidewalk. The car’s lights were on and the engine was running.

Under similar facts, the Court of Appeals in Ostby affirmed the district court’s determination in a stipulated facts trial that the vehicle in that case was not safely off the roadway. The vehicle was in a parking lot with its headlights on, the engine was running, and the transmission was in drive. Id. at 868. The car was situated in the middle of the roadway blocking access to adjoining parking areas and buildings. Id. The driver was passed out behind the wheel. Id.

While the issue in Ostby was whether the evidence supported the trial court’s determination that the vehicle was not safely off the roadway, I believe the facts there, and in Votava’s case, raise an additional issue: whether the evidence is sufficient to warrant giving an instruction on the defense at all. A defendant raising an affirmative defense must offer sufficient evidence to justify giving the instruction. E.g., State v. Janes, 121 Wn.2d 220, 236-37, 850 P.2d 495 (1993) (whether instruction on self-defense warranted); State v. Buford, 93 Wn. App. 149, 967 P.2d 548 (1998) (whether unwitting possession defense instruction warranted); State v. Trujillo, 75 Wn. App. 913, 883 P.2d 329 (1994) (whether entrapment instruction justified).

The parties, however, have not raised this issue on this discretionary review, and there may be other evidence, not included in the record on review, that would have a bearing on this question. I write separately merely to point out that the majority opinion should not be read to foreclose the trial court’s consideration of this question on remand. The majority simply holds that the trial court erred in concluding that the instruction could not be given because Votava did not himself move the vehicle—a different question entirely.

I concur.

Fairhurst, J., concurs with Madsen, J.