                                                                                  JUN 21 1013


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  COURT OF APPEALS, DIVISION III, STATE OF 

              WASHINGTON 

CITY OF YAKIMA,                                   )    No. 30666-6-111
                                                  )
                 Respondent,                      )
                                                  )
          v.                                      )    ORDER GRANTING
                                                  )    MOTION TO PUBLISH
JULIO MENDOZA GODOY,                              )

                                                  )

                 Petitioner.                      )


       The court has considered the city of Yakima's motion to publish, the answer

thereto, and the record and file herein;

       IT IS ORDERED the motion to publish is granted. The opinion filed by the court

on May 7,2013, shall be modified on page 1 to designate it is a published opinion and

on page 6 by deletion of the following language:

              A majority of the panel has determined this opinion will not be
       printed in the Washington Appellate Reports, but it will be filed for public
       record pursuant to RCW 2.06.040.


       DATED:       June 27, 2013

       PANEL:        Judges Kulik, Brown, and Korsmo

       FOR THE COURT:


                                                 K{!'viN ~SMO
                                                 CHIEF JUDGE
                                                                    FILED 

                                                                   MAY 7;2013 

                                                          In the Office of the Clerk of Court 

                                                        W A State Court of Appeals, Division III 




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


CITY OF YAKIMA,                                )         No. 30666-6-111
                                               )
                      Respondent,              )
                                               )
              v.                               )         UNPUBLISHED OPINION
                                               )
JULIO :MENDOZA GODOY,                          )

                                               )

                       Petitioner.             )


       KULIK, J.   - Moving a vehicle safely off the roadway prior to police pursuit is an

affirmative defense to physical control of a vehicle while under the influence of

intoxicating liquor. RCW 46.61.504(2). Here, the trial court refused to instruct the jury

on the affirmative defense because there was no evidence that an intoxicated Julio

Mendoza Godoy moved the car that he controlled. This court granted discretionary

review ofthe trial court's refusal to instruct on the affirmative defense.

       Unlike in State v. Votava, 149 Wn:2d 178, 183, 66 PJd 1050 (2003), there is no

evidence that Mr. Mendoza Godoy directed the car to be moved or moved it. So he was

not entitled to the affirmative defense instruction. We affirm the trial court.
No. 30666-6-III
City o/Yakima v. Mendoza Godoy


                                         FACTS

       Julio Mendoza Godoy's friend was having car problems on the night of May 26,

2007. Another friend drove Mr. Mendoza Godoy to the car, which was parked in an

empty lot. Mr. Mendoza Godoy agreed to stay with the car and wait for a mechanic while

his friends left to make a telephone call. He sat alone in the car and drank a beer. There

is no dispute that Mr. Mendoza Godoy was intoxicated.

       Officer Joseph Deccio noticed the car as he drove by. He saw that Mr. Mendoza

Godoy was holding an open beer can and that there was beer in the back seat. Officer

Deccio arrested Mr. Mendoza Godoy and the city of Yakima charged him with physical

control of a motor vehicle while under the influence of intoxicating liquor.

       The case proceeded to a jury trial. The city of Yakima argued against instructing

the jury that moving a car safely off the roadway is an affirmative defense. It reasoned

that there was no evidence that Mr. Mendoza Godoy had moved the car. The court

agreed. The jury convicted Mr. Mendoza Godoy.

       He appealed to Yakima County Superior Court and that court affirmed. This court

granted Mr. Mendoza Godoy's motion for discretionary review.




                                             2

No.30666-6-III
City o/Yakima v. Mendoza Godoy


                                       ANALYSIS

       Actual physical control of a vehicle while "under the combined influence

of or affected by intoxicating liquor" is a crime in the State of Washington.

RCW 46.61.504(1)(c). The statute also provides an affirmative defense to that crime.

RCW 46.61.504(2). The affirmative defense provides, "No person may be convicted

under this section if, prior to being pursued by a law enforcement officer, the person has

moved the vehicle safely off the roadway." RCW 46.61.504(2) (emphasis added). The

issue here is whether the court should have instructed the jury on this affirmative defense

even though there is no evidence that Mr. Mendoza Godoy moved the car.

       We review issues of statutory interpretation de novo. Votava, 149 Wn.2d at 183.

Accordingly, when a court refuses to give a jury instruction based on its interpretation of

the law, our review is de novo. State v. Walker, l36 Wn.2d 767, 772,966 P.2d 883

(1998).

       If statutory language is clear and not defined by statute, we must give the language

its ordinary meaning. Votava, 149 Wn.2d at 183. We cannot read a statute in a way that

renders language superfluous. Cox v. Helenius, 103 Wn.2d 383, 388,693 P.2d 683

(1985). We also cannot read a statute in a way that renders "unlikely, absurd, or strained"

results. State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314 (1992).


                                             3

No. 30666-6-III
City o/Yakima v. Mendoza Godoy


       Mr. Mendoza Godoy argues that the defense at issue applies to any person in an

automobile that is safely off the roadway. We reject that argument for several reasons.

       First, it ignores the statute's plain language. The phrase '''the person has moved

the vehicle'" is clear language and should be given its ordinary meaning. Votava, 149

Wn.2d at 183 (quoting RCW 46.61.504(2)). The word "move" means "to go

continuously from one point or place to another," "to go forward," "get along," or "make

progress." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1479 (1993). The word

"moved" requires the defendant to do something other than sit idly in a vehicle. Mr.

Mendoza Godoy's interpretation of the statute would apply to defendants who have not

moved the vehicle. It would make "the person has moved the vehicle" superfluous.

       Second, it ignores the statute's purposes. Statutory language should be construed

in a way that carries out, not defeats, the statute's purposes. Votava, 149 Wn.2d at 184.

The statute at issue aims to protect the public in two ways: "(1) deterring anyone who is

intoxicated from getting into a car except as a passenger, and (2) enabling law

enforcement to arrest an intoxicated person before that person strikes." Id. (citing State v.

Smelter, 36 Wn. App. 439, 444,674 P.2d 690 (1984)). In Votava, for example, the owner

of a car rode as passenger and instructed the driver to park the car. Id. at 181. The court

reasoned that the owner could assert the "safely off the roadway" defense because



                                              4

No. 30666-6-II1
City ofYakima v. Mendoza Godoy


directing the driver to park meant that he "moved" the car and, by not actually driving the

car himself, he fulfilled one of the statute's purposes~ Id. at 184.

       Mr. Mendoza Godoy argues that the purposes of the statute would be supported

here because Votava explained that "[a]Uowing a defendant who did not drive to present

the defense better advances the purposes of the statute." Id. However, he takes Votava's

language out of context. The language refers to a person who moved the car without

driving it and that is not what happened here. Moreover, by getting into the driver's seat

of his friend's car, Mr. Mendoza Godoy did exactly what the statute aims to deter. Mr.

Mendoza Godoy's interpretation of the statute renders an absurd result.

       Finally, we reject Mr. Mendoza Godoy's argument that this case is analogous to

. Votava and City ofSpokane v. Beck, 130 Wn. App. 481, 123 P.3d 854 (2005). The only

similarity between Votava, Beck, and this case is that all three defendants sat intoxicated

in the driver's seats of their legally parked cars. See Votava, 149 Wn.2d at 181; Beck, 130

Wn. App. at 484. Unlike in Votava, there was no evidence that Mr. Mendoza Godoy had

moved the car. And Beck is unhelpful because there is nothing to indicate whether Mr.

Beck moved his car or not; the issue was not addressed on appeal. Votava and Beck do

not warrant a "safely off the roadway" instruction here.




                                              5

No.30666-6-III
City of Yakima v. Mendoza Godoy


       Although the car here was safely off the roadway, there is no evidence that Mr.

Mendoza Godoy moved it there. Accordingly, the court correctly refused to instruct the

jury on the "safely off the roadway" defense.

       We affirm the trial court.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                          Kulik, J.

WE CONCUR:




Brown, J.                                 Khrsmo, C.J.




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