The law always seems to be one step behind technology. Does Texas' law stand up to this new challenge?
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Judges overturn verdict of DWI
BY SETH BLOMELEY

Posted on Thursday, January 26, 2006
URL: http://www.nwanews.com/adg/News/143818/

The Arkansas Court of Appeals on Wednesday reversed a felony driving while intoxicated conviction in large part because the defendant started his vehicle by a remote-start button, not by a key.

Charles Franklin Rogers, 60, of Springdale was convicted by Washington County Circuit Judge William Storey and sentenced to 18 months in jail.

Rogers acknowledged he had been drinking. But he argued that it was cold and he simply wanted to sleep in his Cadillac Escalade until he was in a condition to drive. He contended he started the vehicle so he could keep warm on a cold night.

The appeals court, in a 4-2 decision, sided with Rogers.

Appeals Judge John B. Robbins wrote for the court that a prior state Supreme Court case "set out a bright-line rule that actual physical control begins" with the keys in the ignition.

"The state did not counter [Rogers'] evidence that the car was not moveable unless and until the keys were placed in the ignition," Robbins wrote. "Criminal statutes are to be construed strictly in favor of the accused, and we are powerless to declare an act to come within the criminal laws by implication."

Bob McMahon, the state prosecutor coordinator, said he's already gotten calls on the case from the national office of Mothers Against Drunk Driving. He said prosecutors may ask the Legislature to update the drunken driving laws for the new technology of remotestart buttons.

Washington County Prosecuting Attorney Terry Jones said a new law isn't needed. But he said police officers probably will have to use different tactics in the future, such as waiting for a driver with a remote-start button to put the keys in the ignition before making an arrest.

"Or, maybe [police should] arrest them anyway, and let the courts sort it out," Jones said.

Teresa Belew, president of the Arkansas chapter of MADD, said the court decision sends the wrong message that resting behind the wheel will sober up a person. She said that's not the case, and sometimes people who intend to rest will end up driving.

Rogers, a self-employed home builder, was charged in the Jan. 7, 2004, arrest after recording a 0.14 blood alcohol level. The legal limit is 0.08. Because court records said he had three DWI convictions in the previous five years, the charge was a felony.

The appeals court said two Fayetteville police officers found Rogers asleep in his Cadillac outside an Elk's Lodge at 2 a. m. The vehicle's engine was running with its headlights on. His foot appeared to be on the brake pedal and his keys were found on the floor.

The technician who had installed the automatic-start button testified at the trial that the only way the driver could move the car after pressing the remotestart button was to put the keys in the ignition. The technician said the remote start was for accessories such as the heater.

The prosecution argued that the engine running "was a sufficient showing of control" over the vehicle by Rogers.

This wasn't the first time Rogers had gotten into such a situation. He was acquitted a few years earlier by Fayetteville District Judge Rudy Moore after another DWI arrest on similar circumstances, said his lawyer, Thomas Bramhall of Fayetteville.

In that case, Rogers used the remote start to keep warm while waiting for a taxi he had called, Bramhall said.

Bramhall said his client has received treatment and hasn't been cited for DWI since the 2004 arrest.

"All Mr. Rogers did was try to do the right thing," Bramhall said. "He never drove the vehicle."

He said Rogers isn't a "hardcore drunk" but has been "devastated" the last several years following the 1999 death of his daughter, Katie Nicole Rogers, 18.

She died in an alcohol-related crash on Interstate 540, the first fatality on the new stretch of highway in Northwest Arkansas.

Agreeing with Robbins in the case were Judges Terry Crabtree, Andree Layton Roaf and Karen Baker.

Writing dissenting opinions were Judges Sam Bird and Wendell Griffen.

Bird wrote that the majority was relying on a 1982 Supreme Court case that was issued before there were such things as remote-start buttons.

"I see no distinction between the degree of control over the operation of an automobile [by auto-start or by key ]," Bird wrote.

Griffen wrote, "Hopefully, our Supreme Court will correct the misjudgment reflected by the majority opinion and in doing so will vindicate the public condemnation against drunk driving."

A spokesman for the attorney general's office said the office is analyzing whether to pursue the case further.

At the court of appeals, the case is CACR 05-491, Charles Franklin Rogers v. State of Arkansas.

I don't know about no Arkansas law, but in Texas it's driving or OPERATING. I think hitting a remote starter button is still operating the vehicle (turning the engine on!) and hence DWI. What's wrong with those ARKansasans?

See, e.g., Denton v. State, 911 S.W.2d 388 (defendant operating car where he was inside and revving engine, even though he couldn't get it in gear). Seems to me that some drunk standing outside his truck, turning it off and on with a button to entertain himself, isn't operating in the same sense as someone inside the truck trying to make it move. Now, if he's got some sort of James Bond remote control that allows him to drive the truck around while standing around drunk, you have a winner.

Remember to look at Penal Code Section 1.05 for the rules of construction. We don't follow the "strict construction" rule mentioned in the article.

[This message was edited by John Rolater on 01-27-06 at .]

Call a cab or sleep it off. IF, and I stress IF, the def. was really asleep, then I'm not sure that I have a problem with him sleeping w/the motor on. The whole Key in vs. Key out and remote button, etc. is irrelevant to me. Of course, I would be willing to bet there are lots of drunks w/those things that start the car w/the button, get in, are too drunk to remember to put keys in ignition, and pass out trying to figure out what the problem is. If really trying to sleep it off, I don't think you hammer a guy for trying to do it. Of course the problem is, 2 hrs later, he wakes up thinks he good to go and then heads out while still drunk, just not as drunk as before.