ROBERTS v. STATE

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Docket Number

No. CR 85-203.

Attorney(S)

Hale, Ward, Young, Green Morley, by: Stephen E. Morley, for appellant. Steve Clark, Att'y Gen., by: Theodore Holder, Asst. Att'y Gen., for appellee.

Judges

DAVID NEWBERN, Justice.

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Smart Summary

Factual and Procedural Background

This appeal arises from the conviction of Danny Roberts for driving while intoxicated (DWI) and violation of the implied consent law. The appellant was found asleep behind the wheel of a car that was lodged against a building, with the ignition key turned on and the gear shift in the "drive" position, though the engine was not running. The police officer who found him noted signs of intoxication. The Pulaski Circuit Court convicted the appellant of both offenses. On appeal, the Supreme Court of Arkansas affirmed the DWI conviction but reversed and dismissed the implied consent violation conviction.

Legal Issues Presented

Whether the evidence was sufficient to show that the appellant was in physical control of the vehicle while intoxicated, thereby supporting a DWI conviction under Ark. Stat. Ann. 75-2503(a) (Supp. 1985).
Whether the appellant violated the implied consent law under Ark. Stat. Ann. 75-1045 (Supp. 1985) by refusing a blood alcohol test, given the factual circumstances.
Whether the implied consent statute applies to persons found in physical control of a vehicle while intoxicated but not shown to have operated the vehicle.
The constitutional question regarding whether a defendant may be compelled to admit an element of an offense by signing a "rights form" and agreeing to a blood alcohol test.

Arguments of the Parties

Appellant's Arguments

The appellant contended that the evidence did not show he was in actual physical control of the car, citing a precedent where a defendant found asleep with keys not in the ignition was not deemed in control.
The appellant argued he was not shown to have operated the vehicle, and thus the implied consent law requiring consent to blood alcohol testing did not apply.
He also argued that signing the "rights form" and agreeing to the blood alcohol test would amount to admitting an element of the offense, violating the constitutional right against self-incrimination.

Appellee's Arguments

The State argued that the appellant was in physical control of the vehicle as the keys were in the ignition and the gear shift was in "drive," similar to a prior case where a conviction was upheld under similar facts.
The State maintained the evidence was sufficient to support the DWI conviction based on the appellant's intoxicated condition and control of the vehicle.
The State contended the implied consent law applied, but the court ultimately rejected this argument based on statutory interpretation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984)	Physical control of vehicle not established where keys were not in ignition.	Distinguished from the instant case; Dowell was found with keys on seat, not in ignition, so not in control.
Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985)	Physical control established where defendant found asleep with keys in ignition and gear in drive.	Applied analogously; appellant found similarly situated, supporting physical control finding.
Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985)	Standard for sufficiency of evidence on appeal: evidence viewed in favor of appellee and verdict sustained if substantial evidence exists.	Used to uphold the sufficiency of evidence for DWI conviction.
Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980)	Same standard of review on sufficiency of evidence.	Reinforced appellate standard for sustaining verdict.

Court's Reasoning and Analysis

The court first considered whether the appellant was in physical control of the vehicle while intoxicated. It found the evidence convincing that the appellant was in control, noting that the keys were in the ignition, the gear shift was in "drive," and the appellant was found asleep behind the wheel with signs of intoxication. The court distinguished Dowell, where keys were not in ignition, and relied on Wiyott, where the presence of keys in ignition supported a finding of control. The court further found the evidence sufficient to establish intoxication based on the officer's observations, including odor of intoxicants, unsteadiness, and slurred speech, applying the standard that evidence is viewed favorably to the appellee and sustained if any substantial evidence supports the verdict.

Regarding the implied consent law, the court examined the statute's subsections and concluded none applied to the appellant's situation. Specifically, the appellant was not arrested for an offense arising from driving while intoxicated, was not involved in a fatal accident, nor was he stopped by an officer who had reasonable cause to believe he was intoxicated. The court acknowledged a possible legislative oversight in not including persons found in physical control while intoxicated but declined to extend the statute. Finally, the court noted the appellant's constitutional argument that requiring a defendant to sign a form admitting an element of the offense violates the right against self-incrimination, recognizing the merit of this argument but deferring its resolution to a future case.

Holding and Implications

The court's final decision was to affirm in part and reverse in part. It affirmed the DWI conviction based on sufficient evidence that the appellant was intoxicated and in physical control of the vehicle. The court reversed and dismissed the implied consent violation conviction because the appellant did not fall within the literal provisions of the statute governing implied consent.

The direct effect is that the appellant remains convicted of DWI but is not penalized under the implied consent law for refusing the blood alcohol test. No new legal precedent was established beyond the clarification of statutory interpretation and recognition of constitutional concerns regarding self-incrimination in the context of implied consent forms.

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Danny ROBERTS v. STATE of Arkansas

1. AUTOMOBILES — DRIVING WHILE INTOXICATED — SUFFICIENCY OF EVIDENCE TO SHOW INTOXICATION AND BEING IN CONTROL OF CAR. — The evidence was convincing that appellant was in control of the car and was intoxicated where it was shown that a police officer found appellant asleep at 1:30 a.m. behind the wheel of a car which was lodged against a building in a parking lot, both the car and the building being damaged; the ignition key in the car was turned on, and the gear shift lever was in the "drive" position but the engine was not running; and the appellant smelled of intoxicants, was unsteady on his feet, spoke in a slurred manner, and had to be "wrestled" from his position behind the steering wheel. 2. EVIDENCE — SUFFICIENCY — STANDARD OF REVIEW. — When the issue is whether the evidence was sufficient, the appellate court views it most favorably to the appellee and sustains the verdict if there is any substantial evidence to support it. 3. AUTOMOBILES — IMPLIED CONSENT PROVISIONS OF DWI ACT PROVISIONS INAPPLICABLE UNDER PRESENT FACTUAL SITUATION. — None of the subsections of Ark. Stat. Ann. 75-1045 (Supp. 1985), the implied consent provisions of the DWI Act, contain any reference to persons found in physical control of vehicles while intoxicated; thus, the statute is not applicable to the facts in this case. 4. AUTOMOBILES — SIGNING OF "RIGHTS FORM" AND AGREEING TO TAKE BLOOD ALCOHOL TEST — EFFECT TO BE CONSIDERED BY COURT IN APPROPRIATE CASE. — Appellant's argument that, had he signed the "rights form" presented to him by the police and agreed to the blood alcohol test, he would have effectively been admitting that he had driven the car has merit, and the supreme court `Hill give it thorough consideration in an appropriate case. 5. CONSTITUTIONAL LAW — RIGHT NOT TO INCRIMINATE ONESELF. — No defendant should be required either to admit an element of an offense or face punishment, as that violates the right not to incriminate oneself.

DAVID NEWBERN, Justice.

This appeal is from conviction of the appellant of DWI and violation of the implied consent law. We affirm the DWI conviction as the evidence below supports the trial court's finding that the appellant was intoxicated while in physical control of a vehicle in violation of Ark. Stat. Ann. 75-2503(a) (Supp. 1985). We reverse and dismiss the appellant's conviction of violation of the implied consent law because the evidence does not support a finding the appellant violated Ark. Stat. Ann. 75-1045 (Supp. 1985).

1. DWI

A police officer found the appellant asleep at 1:30 a.m. behind the wheel of a car which was lodged against a building in a parking lot. The car and the building were damaged. The ignition key in the car was turned on, and the gear shift lever was in the "drive" position, but the engine was not running. The appellant was awakened by the officer whose undisputed testimony was that the appellant smelled of intoxicants, was unsteady on his feet, spoke in a slurred manner, and had to be "wrestled" from his position behind the steering wheel.

For the proposition that the evidence did not show the appellant to have been in actual physical control of the car, the appellant cites Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984), in which we held Dowell was not shown to have been in control of the car in which he was found asleep. There, the keys to the vehicle were found in the car seat at the time of the arrest.

We agree with the state's contention that the facts of this case resemble more those in Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985), in which Wiyott was found asleep in the car with the keys in the ignition switch. The appellant in that case attempted to start the engine when he was awakened by officers. There, we sustained the conviction noting that the appellant could have at any moment awakened and started the car, and he was thus in as much control of a vehicle as an intoxicated person can be. We find the same to be true here.

As to whether the evidence was sufficient to show that the appellant in this case was intoxicated, we need only say we find the trial court was warranted in finding the circumstances mentioned earlier to have been convincing. The appellant's argument is that the arresting officer did not give an opinion that the appellant was intoxicated and that the appellant could have been merely groggy after being aroused from a deep sleep. That does not explain the odor of intoxicants and the officer's testimony that the appellant was unsteady on his feet even when they were at the police station later. When the issue is whether the evidence was sufficient, we view it most favorably to the appellee and sustain the verdict if there is any substantial evidence to support it. Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985); Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980).

2. Implied Consent

The appellant refused to take a blood alcohol test. He argues that only persons who operate a motor vehicle are deemed to have consented to take the blood alcohol test and that he has not been shown to have operated his vehicle. We need not get to the question whether the evidence was sufficient to show the appellant operated his car, because, even if it were shown that he had, the consent is deemed to have been given only if:

(1) The driver is arrested for any offense arising out of acts alleged to have been committed while the person was driving while intoxicated or driving while there was 0.10% or more of alcohol in the person's blood, or

(2) The driver is involved in a fatal accident; or

(3) The driver is stopped by a law enforcement officer who has reasonable cause to believe that the driver is intoxicated or that the driver has 0.10% or more of alcohol in the person's blood.

None of these subsections of Ark. Stat. Ann. 75-1045 (Supp. 1985) apply. The appellant was not arrested for any act committed while driving while intoxicated. Nor was he involved in a fatal accident or "stopped" by an officer who had reasonable cause to believe him to have been intoxicated.

While it may have been a mere legislative oversight to have failed to include in the implied consent provisions reference to persons found in physical control of vehicles while intoxicated, we cannot cure that here.

[4, 5] While we need not decide the issue in this case, we make note of the appellant's argument that had he signed the "rights form" presented to him by the police and agreed to the blood alcohol test he would have effectively been admitting that he had driven the car. That is one of the elements of DWI under 75-2503(a), and no defendant should be required either to admit an element of an offense or face punishment, as that violates the right not to incriminate oneself. The argument has merit, and we will give it thorough consideration in an appropriate case. Here, however, it is enough to say that this appellant did not come within the literal provisions of 75-1045(a).

Affirmed in part; reversed in part, and dismissed.

PURTLE, J., not participating.