This Is Pretty Cool - When Is A DWI Not A DWI - Arkansas Court Of Appeals To Decide

Discussion in 'Law and Justice System' started by GotZoom, Nov 18, 2005.

  1. GotZoom
    Offline

    GotZoom Senior Member

    Joined:
    Apr 20, 2005
    Messages:
    5,719
    Thanks Received:
    366
    Trophy Points:
    48
    Location:
    Cordova, TN
    Ratings:
    +366
    What is "is"? I did not have sexual relations ...

    Oh..never mind...same state..wrong subject.

    -----------

    LITTLE ROCK - The Arkansas Court of Appeals on Wednesday was given a riddle to ponder: If a car engine is running but the vehicle is inoperable, can the drunk man in the driver's seat be convicted of DWI?

    The attorney for Charles F. Rogers of Springdale argued to the appeals court that his client's DWI conviction in Washington County Circuit Court should be overturned because Rogers was not in "actual physical control" of his vehicle when was found asleep behind the steering wheel.

    Rogers was arrested in Fayetteville in January 2004 after police officers found him asleep in his car in the parking lot of the Elks Lodge on Crossover Road. His blood alcohol level, according to briefs filed in the case, was .145 percent. The limit for motorists to be charged with DWI is .08 percent.

    Rogers' attorney Thomas Bramhall argued Wednesday that although the car was running and the headlights and taillights were on, the car keys were on the floorboard next to the driver.

    Rogers had started his vehicle with a remote device to get the car warm before he got into it, Bramhall said. The vehicle's key was never used and Rogers had no intention of driving, and he could not have driven the vehicle anyway because the remote cannot be used for driving, the lawyer said.

    When the remote device is used, the steering wheel remains locked and the gearshift cannot be engaged, he said. The only ways to disengage the remote device is to press on the vehicle's brakes or press the remote, he said.

    "At no time was there any evidence that Mr. Rogers even drove his vehicle while intoxicated," Bramhall told the court. "He did not have control of the vehicle."

    Bramhall said his client was simply using his vehicle "as shelter" to stay out of the cold and fell asleep.

    He cited two state Supreme Court rulings, one involving a Fort Smith man in 2000, when justices reversed DWI convictions of drivers who were drunk and sitting in the driver's seat of their vehicles because the cars were not running and the keys were found on the floor or on the dashboard.

    The only difference between those two cases and Rogers' case, Bramhall said, was that his client was sitting in a running car.

    "In those two cases the Supreme Court hit the nail on the head," Bramhall said. "No key, no act of control of the vehicle. The key in the ignition is the act of control of the vehicle."

    Assistant Attorney General David Davis disagreed, arguing there was substantial evidence that Rogers was in control of his vehicle that night.

    "It's not a matter of law that where the keys are indicates actual physical control," Davis said. The arresting officers first thought they saw Rogers' break lights on and could not initially find the car keys on the floor, he said.

    Davis said the Supreme Court and Court of Appeals have always found a driver in control of a vehicle when the car is running.

    Appeals Judge Wendell Griffen wondered how the new technology would effect state DWI laws.

    "The question is, does immobility equal absence of actual physical control?" Griffen said.

    He later asked if the ability of the driver to turn off the engine with the remote was an example of actual physical control.

    Griffen also posed several hypothetical scenarios to the lawyers, including whether DWI charges would be warranted if a person is drunk and asleep in the driver's seat and someone sober sitting in the passenger seat uses the driver's keys to start the car's engine to listen to the stereo.

    Davis said he thought charges would be warranted.

    http://www.arkansasnews.com/archive/2005/11/17/News/330821.html
     
  2. dmp
    Offline

    dmp Senior Member

    Joined:
    May 12, 2004
    Messages:
    13,088
    Thanks Received:
    741
    Trophy Points:
    48
    Location:
    Enterprise, Alabama
    Ratings:
    +741
    The guy deserves justice. In this case, justice means "His conviction should be over-turned and the state should reemburse him for his legal exenses, if any"
     
  3. Mr. P
    Offline

    Mr. P Senior Member

    Joined:
    Aug 5, 2004
    Messages:
    11,329
    Thanks Received:
    618
    Trophy Points:
    48
    Location:
    South of the Mason Dixon
    Ratings:
    +620
    I agree....
    And...
    Hey that's private property, you can drive on private property without a drivers’ license. Well, that's how it is in Ga anyway.
     
  4. William Joyce
    Offline

    William Joyce Chemotherapy for PC

    Joined:
    Jan 23, 2004
    Messages:
    9,693
    Thanks Received:
    1,135
    Trophy Points:
    190
    Location:
    Caucasiastan
    Ratings:
    +1,349
    These cases are nuts. I sympathize with the desire to get tough on drunk drivers, but this just makes no sense.
     
  5. pegwinn
    Offline

    pegwinn Top of the Food Chain

    Joined:
    Apr 17, 2004
    Messages:
    2,549
    Thanks Received:
    329
    Trophy Points:
    98
    Location:
    Texas
    Ratings:
    +329
    Methinks they'll be rewriting the statute soon.
     

Share This Page