Appeals Court Reverses DWI Conviction
By Andrew DeMillo, The Associated Press
LITTLE ROCK — The Arkansas Court of Appeals on Wednesday reversed the
drunken-driving conviction of a Washington County man who turned on his
car’s engine using a remote device.
Judges ruled that there wasn’t enough evidence to convict Charles
Franklin Rogers, who was found asleep in his car by Fayetteville officers
in January 2004. Rogers was convicted by a Washington County Circuit
Court of driving while intoxicated.
Deputy Washington County Prosecuting Attorney Charles Duell said
there’s a good chance the Arkansas Attorney General’s Office will appeal
the ruling to the Arkansas Supreme Court.
“I knew that it was a new issue that hadn’t been heard down there and
I knew it was going to be close, but I was surprised that it was
reversed,” Duell said Wednesday.
Duell was encouraged by strong dissent from two justices on the
appeals court. The majority on the court seemed to believe that the keys
were what was primarily at issue, Duell said. The dissenting justices and
prosecutors took the position that Rogers’ control and management of the
vehicle was the critical issue.
Rogers’ vehicle’s engine was running, exhaust was coming from the
tailpipe, and its headlights and taillights were on, the court’s decision
said. Police said Rogers’ foot appeared to be on the brake pedal.
Rogers had testified that he was driven back to his car by a friend
and started the engine of his vehicle by pressing a remote-start button.
Rogers testified that once he entered his car, the keys were never in the
ignition but rather on the floorboard.
During his trial, Rogers had the electronics technician who installed
the remote start feature say there was no way Rogers could drive the
vehicle without putting the keys in the ignition.
The remote start, the technician said, only turns on the headlights,
taillights and accessories such as the radio and heater.
Duell said law enforcement officials are concerned drunken drivers
could start taking advantage of technology, and what could be considered
a loophole in the law regarding whether the keys have to be in the
ignition for the driver to be in control of a car, to beat
drunken-driving charges.
In the majority opinion, Judge John B. Robbins wrote that prosecutors
failed to prove that Rogers was in actual control of the vehicle when
police found him.
“The trial court did not find that the keys were in the ignition, nor
did any evidence show that the keys were in the ignition,” Robbins
wrote.
The decision said the judges “are powerless to declare an act to come
within the criminal laws by implication.”
Robbins was joined by Judges Terry Crabtree, Karen R. Baker and Andree
Layton Roaf. Judges Sam Bird and Wendell L. Griffen dissented.
Griffen, in his dissent, said that Rogers posed just as much of a
“menace” to the public as a drunken person passed out behind the wheel
with the keys in the ignition.
“Drunk drivers are, by definition, drunk starters, whether they start
their vehicles by auto-start or by conventional means,” Griffen wrote. “A
driver who chooses to enjoy the benefits of auto-start remote technology
has no right to expect an exemption from prosecution for DWI when he
chooses to become legally intoxicated, start his engine, and get behind
the wheel of his vehicle.”
Duell said Rogers was convicted previously of driving while
intoxicated.
The Morning News’ Ron Wood contributed to this report.
Source: http://www.nwaonline.net/
