Stephenson v. City of Fort Smith

tERRY Crabtree, Judge. The Sebastian County Circuit Court found the appellant, Austin Stephenson, guilty of second-offense driving while intoxicated and sentenced him to forty-five days in the Sebastian County Detention Center with thirty-one days suspended, fined him $950, and ordered him to complete an alcohol treatment program. In addition, the court found appellant guilty of refusal to submit to a breath test and suspended appellant’s driver’s license for six months. On appeal, appellant presents two arguments: (1) the trial court erred in finding appellant in actual physical control of a motor vehicle within the meaning of the DWI statute, and (2) the trial court erred in finding appellant guilty of refusal to submit to a breath test when the facts did not show appellant in actual physical control of a motor vehicle. We agree and reverse on both points. The parties stipulated that on July 7, 1999, at approximately 10:22 p.m., Officer Ron Depriest of the Fort Smith Police Department was dispatched to the “Kwik Trip” to investigate a person who was passed out behind the wheel of a vehicle. When he arrived, Officer Depriest saw a white Chevrolet pickup truck parked in front of the Kwik Trip’s doors. The officer found appellant asleep, intoxicated, and sitting behind the steering wheel. Officer Depriest did not see appellant “driving the truck or otherwise physically operating it.” However, the driver’s side window was down; the motor and the car lights were off; and the keys to the vehicle were on the car dashboard. For appellant’s first point on appeal, he argues that the trial court erred in finding that he was in actual physical control of a motor vehicle. Appellant challenges the sufficiency of the evidence in regard to his driving-while-intoxicated conviction. “Actual physical control” of a vehicle is an element of driving while intoxicated pursuant to Ark. Code Ann. § 5-65-103 (Repl. 1997). Appellant contends that there is insufficient evidence that he had actual physical control of the vehicle. When the sufficiency of the evidence is challenged on appeal, the test is whether the evidence is substantial. Diehl v. State, 63 Ark. App. 190, 975 S.W.2d 878 (1998). Evidence is substantial if it is forceful enough to compel a conclusion one way or another and goes beyond mere speculation or conjecture. Id. Our court reviews the evidence in the light most favorable to the State and considers only evidence that supports the verdict. Id. In Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984), our supreme court held that Dowell was not in actual control of his vehicle within the meaning of the DWI statute. Dowell was found asleep in his automobile, which was parked with the motor not running. The keys were in the seat of the vehicle by Dowell’s side. Here, appellant was also found asleep in his vehicle, which was parked with the motor not running. The keys were on the dash of the vehicle. We find that the case at bar is substantially similar to Dowell with the only difference being the location of the keys in the vehicle. Under these circumstances, we do not wish to create a legal distinction between keys found on the seat of a vehicle and keys found on the dash of a vehicle. Therefore, we hold that appellant was not in actual control of his vehicle. Accordingly, we reverse appellant’s conviction for second-offense driving while intoxicated. For appellant’s second point on appeal, he argues that the trial court erred in finding him guilty of refusal to submit to a breath test when the facts did not show appellant in actual physical control of a motor vehicle. In order to fall under the implied-consent laws, one must operate a motor vehicle or be in actual physical control of a motor vehicle. Ark. Code Ann. § 5-65-202(a) (Repl. 1997). Ark. Code Ann. § 5-65-202(a) provides: Implied consent. (а) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state shall be deemed to have given consent, subject to the provisions of § 5-65-203, to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her blood 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 one-tenth of one percent (0.10%) or more of alcohol in the person’s blood; or (2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or (3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood. (Emphasis added.) The State suggests that Ark. Code Ann. § 5-65-202(a)(3) requires a person to submit to a chemical test if a law enforcement officer has reasonable cause to believe that a person was operating or was in actual physical control of a motor vehicle. We disagree with the State’s interpretation of the statute. We have carefully examined section 202 and find that the excerpt “reasonable cause to believe that the person” modifies and concerns the excerpt “is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood.” See State v. Schaub, 310 Ark. 76, 832 S.W.2d 843 (1992). Moreover, we find that the excerpt “while operating or in actual physical control of a motor vehicle” sets forth a condition precedent to a violation of the implied-consent law as set forth in section 202(a)(3). See id. Because we find that appellant was not operating a motor vehicle or in actual physical control of a motor vehicle, we also must reverse appellant’s conviction for refusal to submit to a breath test. Reversed and dismissed. Robbins, C.J., Stroud and Neal, JJ., agree. Pittman and Meads, JJ., dissent.