The opinion
Wendell L. Griffen, Judge, dissenting. I join Judge Bird’s dissent because I agree that appellant exercised actual physical control over his vehicle. I also agree that the cases cited by the majority, Dowell v. State, 283 Ark. 161 , 671 S.W.2d 740 (1984), and Stephenson v. City of Fort Smith, 71 Ark. App. 190 , 36 S.W.3d 754 (2000), do not compel reversal because whether appellant exercised actual physical control over his vehicle is not determined by merely finding that his keys were not in the ignition of his running vehicle.
I write separately to further emphasize that appellant’s conduct represented precisely the type of public menace that the DWI statute is designed to prevent; that he posed just as strong a menace to the public as any drunk person passed out behind the wheel of his running vehicle with the keys in the ignition; and that the auto-start technology he had installed into his vehicle did not lessen the threat that he posed.
The purpose of the DWI statute is not only to prevent intoxicated persons from driving on the highways, but to also prevent intoxicated persons from having such control over motor vehicles that they may become a menace to the public at any moment by driving the vehicle. Hodge v. State, 27 Ark. App. 93 , 766 S.W.2d 619 (1989). If a stone-cold drunk driver with a blood-alcohol content of nearly twice the legal limit who has his foot on the brake with the engine running while he is sitting behind the wheel of his vehicle does not pose the kind of menace that the DWI statute was enacted to prevent, I suspect that comes as a big surprise to the members of the Arkansas General Assembly who enacted the “actual physical control” aspect of the statute. I also suspect that most of the driving public believes that someone in that state who is sitting behind the wheel of a running vehicle with his foot on the brake may become a menace at any moment.
The majority opinion purports to respect the purpose of the DWI statute, yet ignores critical testimony from Officer Knotts and appellant plainly proving that appellant posed precisely the type of “public menace” the DWI statute is designed to prevent. Appellant used his key fob to engage auto-start. He then remained in the front seat, behind the steering wheel with the engine running. Appellant kept the keys within his immediate reach, as proven by the fact that he used the key fob to turn off the vehicle when Knotts aroused him. Appellant told Knotts that he was waiting for someone to pick him up. At trial, however, appellant offered two contradictory explanations for being in his vehicle that also contradicted what he told Knotts at the scene: that he “was just going to go to sleep until the morning” and that he “just planned to sleep there until I felt like I was all right to be able to drive.”
The latter intent, especially, presents the precise danger that the DWI statute was designed to prevent: that an intoxicated person, whose judgment, coordination, and reflexes are severely compromised will, to the detriment of the public, arouse from his drunken stupor and decide that he is capable of driving safely. This threat seems especially pronounced in the instant case because appellant was parked on private property, which would at some point, require him to move his vehicle. The threat posed by appellant, although ignored by the majority opinion, was expressly recognized by the trial judge, who noted that the DWI statute was designed to deter those who are intoxicated from “getting themselves in a situation that Mr. Rogers has put himself in intentionally.”
Appellant argues as if the number of steps required to take the vehicle out of auto-start so that it can be driven normally are so insurmountable as to preclude a finding that he could easily make the vehicle operable again, and thereby precludes the danger of him becoming a public menace. This simply is not so. The person who installed the auto-start device on appellant’s car testified that even if the vehicle is started using auto-start, the vehicle can be driven normally by putting the key in the ignition, then braking and shifting the car into gear. However, these are the same steps that would be required of any driver, whether that driver possessed an auto-start device or not. The only “additional” step required to operate the vehicle normally once it is in auto-start is to simply place the key in the ignition.
Auto-start technology allows a person to start a vehicle, which is a prerequisite to driving it. Drunk drivers are, by definition, drunk starters, whether they start their vehicles by auto-start or by conventional means. 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. While we do not declare an act to come within the criminal laws by implication, affirming appellant’s conviction here would no more violate that rule than affirming in any other case in which control has been found where the defendant was not actually driving the vehicle. 1
This case clearly demonstrates that auto-start technology does not lessen the control that a driver may exercise over a vehicle. Instead, auto-start technology provides an alternative method by which a driver may exercise actual physical control over his vehicle. The evidence in this case overwhelmingly demonstrates that appellant exercised actual physical control over his vehicle and posed a threat to the public although the keys were not in his ignition. 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 that the Arkansas General Assembly recognized when it enacted the “actual physical control” element of the DWI statute. In the meantime, I respectfully dissent.
I am authorized to state that Judge Bird joins in this dissent.
The fact that appellant’s vehicle could not be driven while in auto-start mode does not preclude a finding that he was m actual physical control of his vehicle. See Walker v. State, 241 Ark. 396 , 408 S.W2d 474 (1966) (holding the defendant exercised actual physical control over the vehicle under the DWI statute where the defendant was steering the vehicle while someone else pushed it).