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November 17, 2005

Interesting DWI Twist

When is a drunk driver in "actual physical control" of a vehicle? Sounds pretty simple to determine, right? These days, not so much. The Arkansas Court of Appeals heard oral arguments today in a case that presents an interesting twist.

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.

Now previous Arkansas case law holds that if the engine is running, the driver is said to be in "actual physical control" of the vehicle for purposes of issuing a DWI. But none of those cases involved a remote starter; the keys were in the ignition. So is it the key in the ignition that triggers "actual physical control"? Or is it the motor running? Or both?

The case is CACR05-491. Charles Franklin Rogers v. State of Arkansas, from Washington Circuit. I'll update with the ruling when it's issued.

Posted by Rita at November 17, 2005 03:53 PM

Comments

Almost as interesting a remote starter case as that of my father-in-law's neighbor in Chicago, an Italian gentleman who held an interest in a couple of restaurants and a commercial laundry. He pressed the start button as he climbed into the car, and so the bomb under the seat blew him back out into the seat instead of thru the roof, and he survived.

Posted by: triticale [TypeKey Profile Page] at November 22, 2005 09:24 PM

Wow, now there's a good reason to use a remote starter!

Posted by: Rita [TypeKey Profile Page] at November 23, 2005 03:19 AM