John B. Robbins, Judge.
Appellant Charles Rogers appeals his conviction for driving while intoxicated as entered by the Washington County Circuit Court after a bench trial. Appellant contends on appeal that the conviction is not supported by sufficient evidence that he was in actual physical control of the vehicle under Arkansas law. We agree, mandating that we reverse the conviction.
The facts are not in material dispute. Appellant agrees he was intoxicated when two Fayetteville police officers found him asleep or passed out in his vehicle, a Cadillac Escalade, in the driver’s seat. The vehicle was parked outside an Elk’s lodge at about 2:00 a.m. on January 7, 2004, in Fayetteville, Arkansas. The vehicle’s engine was running with exhaust visible from the tailpipe; the headlights and taillights were on. It was a very cold night, well below freezing. Officers tapped on the window, and with some persistence eventually aroused appellant from sleep. Appellant’s foot appeared to the officers to be on the brake pedal. Appellant turned the vehicle off and exited to speak to the officers. The officers testified that the vehicle keys were recovered from the front passenger area of the vehicle, although the officers could not recall where. The officers denied knowing anything about how remote-start worked.
Appellant testified that he had been driven back to his vehicle by a friend and had started the engine of his vehicle by pressing a remote-start button. He stated that after his vehicle had warmed for a few minutes, he promised his friend that he would enter his Escalade and sleep until he was safe to drive. Appellant testified that once he entered his Escalade, the keys were never in the ignition but rather were on the floorboard.
Appellant had the electronics technician who installed the remote-start testify on his behalf. The technician stated that the only way to turn off the engine after being remotely started is by pushing the remote button again or pressing the brake pedal. He said that remote-start turns on the head and tail lights, and any accessories are available to use, such as the radio, the heat and air conditioning, and the like.
The technician reviewed the videotape of the police encounter taken by the patrol car’s mounted camera.1 The technician stated that the tape showed that the brake lights were not on because, if they were, a third brake light would be activated in the back window. Instead, only the head and tail lights were on. Furthermore, had the brake pedal been depressed, the vehicle’s engine and accessories would have stopped. The technician stated that the tape showed that when appellant was encountered by the police officers, appellant reached down to the floorboard at appellant’s left foot to grab the key ring and then pushed the button on the key fob to turn off remote-start. The technician explained that when in remote-start, one cannot drive the vehicle because the steering is locked and the gear shift is locked. The only way to actually move it is to put the keys into the ignition and turn the ignition to the run position, then brake and shift into gear.
Appellant’s friend testified that he took appellant as a guest inside the Elk’s lodge, where they listened to music and drank a bit. Later on that night, the friend drove appellant to Bobbisox lounge where appellant drank too much. The friend drove appellant back to the lodge, where appellant remote-started the Escalade so it would get warm. His friend said appellant promised he would not drive but would only sleep in his Escalade until he was capable of driving safely.
Appellant moved for directed verdict or dismissal at the appropriate times, arguing that pursuant to Arkansas appellate case law interpreting the DWI statute, there lacked proof that he was in “actual physical control” of the vehicle. Those motions were denied. This argument was amplified by defense counsel in closing argument, explaining that the cases required proof that the keys were in the ignition. The State argued that even if the keys were not in the ignition, the engine was running, which was a sufficient showing of control.
At the conclusion of the evidence, the trial court announced its decision. The trial court found as facts that appellant had been out with his friend drinking that night; that he started his Escalade using the remote-start button while sitting in the friend’s vehicle; that some minutes later appellant entered his vehicle and sat in the driver’s seat with the engine running; that when officers encountered him, appellant’s foot was on the brake pedal, though not necessarily critical to the outcome of the case; and that appellant turned off the engine by use of the remote-start button. The trial court acknowledged that prior case law had held that if the keys to a vehicle were not in the ignition, then there was not sufficient evidence of actual physical control over the vehicle for purposes of DWI. Nonetheless, the trial court stated that this set of facts was distinguishable, without explaining how, and that appellant was guilty of DWI. This appeal followed.
Pursuant to Arkansas Code Annotated section 5-65-103(a) (Supp. 2005), “[i]t is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.” The State pursued conviction under the “actual physical control” aspect of the statute. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support a verdict. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). Substantial evidence is direct or circumstantial evidence that is forceful enough to compel a conclusion one way or another and which goes beyond mere speculation or conjecture. Williams, supra; Ladwig, supra. In making this determination, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Williams, supra; Ladwig, supra.
Viewing the evidence in the light most favorable to the State, there is no evidence that the keys were in the ignition, nor did the trial court find such to be the case. The Omnibus DWI Act of 1983, from which the DWI statute came, was enacted because the legislature declared “that the act of driving a motor vehicle while under the influence...constitutes a serious and immediate threat to the safety of all citizens of this State[.]” The Emergency Clause to Act 549 of 1983. The purpose of Arkansas laws against driving while intoxicated is to prevent accidents and protect persons from injury. See, e.g., Benson v. State, 212 Ark. 905, 208 S.W.2d 767 (1948). The case law developed in this area makes clear that if a person does not place the keys in the ignition, then this scenario falls short of the proof necessary to establish actual physical control of the vehicle for purposes of DWI.2 Whether this demarcation line is reasonable or effective in attaining the purpose of ensuring public safety is not for our court to decide. It is, however, the law in Arkansas. The case law argued by both sides in this case are considered herein.
In Stephenson v. City of Fort Smith, 71 Ark. App. 190,
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John B. Robbins, Judge.
Appellant Charles Rogers appeals his conviction for driving while intoxicated as entered by the Washington County Circuit Court after a bench trial. Appellant contends on appeal that the conviction is not supported by sufficient evidence that he was in actual physical control of the vehicle under Arkansas law. We agree, mandating that we reverse the conviction.
The facts are not in material dispute. Appellant agrees he was intoxicated when two Fayetteville police officers found him asleep or passed out in his vehicle, a Cadillac Escalade, in the driver’s seat. The vehicle was parked outside an Elk’s lodge at about 2:00 a.m. on January 7, 2004, in Fayetteville, Arkansas. The vehicle’s engine was running with exhaust visible from the tailpipe; the headlights and taillights were on. It was a very cold night, well below freezing. Officers tapped on the window, and with some persistence eventually aroused appellant from sleep. Appellant’s foot appeared to the officers to be on the brake pedal. Appellant turned the vehicle off and exited to speak to the officers. The officers testified that the vehicle keys were recovered from the front passenger area of the vehicle, although the officers could not recall where. The officers denied knowing anything about how remote-start worked.
Appellant testified that he had been driven back to his vehicle by a friend and had started the engine of his vehicle by pressing a remote-start button. He stated that after his vehicle had warmed for a few minutes, he promised his friend that he would enter his Escalade and sleep until he was safe to drive. Appellant testified that once he entered his Escalade, the keys were never in the ignition but rather were on the floorboard.
Appellant had the electronics technician who installed the remote-start testify on his behalf. The technician stated that the only way to turn off the engine after being remotely started is by pushing the remote button again or pressing the brake pedal. He said that remote-start turns on the head and tail lights, and any accessories are available to use, such as the radio, the heat and air conditioning, and the like.
The technician reviewed the videotape of the police encounter taken by the patrol car’s mounted camera.1 The technician stated that the tape showed that the brake lights were not on because, if they were, a third brake light would be activated in the back window. Instead, only the head and tail lights were on. Furthermore, had the brake pedal been depressed, the vehicle’s engine and accessories would have stopped. The technician stated that the tape showed that when appellant was encountered by the police officers, appellant reached down to the floorboard at appellant’s left foot to grab the key ring and then pushed the button on the key fob to turn off remote-start. The technician explained that when in remote-start, one cannot drive the vehicle because the steering is locked and the gear shift is locked. The only way to actually move it is to put the keys into the ignition and turn the ignition to the run position, then brake and shift into gear.
Appellant’s friend testified that he took appellant as a guest inside the Elk’s lodge, where they listened to music and drank a bit. Later on that night, the friend drove appellant to Bobbisox lounge where appellant drank too much. The friend drove appellant back to the lodge, where appellant remote-started the Escalade so it would get warm. His friend said appellant promised he would not drive but would only sleep in his Escalade until he was capable of driving safely.
Appellant moved for directed verdict or dismissal at the appropriate times, arguing that pursuant to Arkansas appellate case law interpreting the DWI statute, there lacked proof that he was in “actual physical control” of the vehicle. Those motions were denied. This argument was amplified by defense counsel in closing argument, explaining that the cases required proof that the keys were in the ignition. The State argued that even if the keys were not in the ignition, the engine was running, which was a sufficient showing of control.
At the conclusion of the evidence, the trial court announced its decision. The trial court found as facts that appellant had been out with his friend drinking that night; that he started his Escalade using the remote-start button while sitting in the friend’s vehicle; that some minutes later appellant entered his vehicle and sat in the driver’s seat with the engine running; that when officers encountered him, appellant’s foot was on the brake pedal, though not necessarily critical to the outcome of the case; and that appellant turned off the engine by use of the remote-start button. The trial court acknowledged that prior case law had held that if the keys to a vehicle were not in the ignition, then there was not sufficient evidence of actual physical control over the vehicle for purposes of DWI. Nonetheless, the trial court stated that this set of facts was distinguishable, without explaining how, and that appellant was guilty of DWI. This appeal followed.
Pursuant to Arkansas Code Annotated section 5-65-103(a) (Supp. 2005), “[i]t is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.” The State pursued conviction under the “actual physical control” aspect of the statute. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support a verdict. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). Substantial evidence is direct or circumstantial evidence that is forceful enough to compel a conclusion one way or another and which goes beyond mere speculation or conjecture. Williams, supra; Ladwig, supra. In making this determination, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Williams, supra; Ladwig, supra.
Viewing the evidence in the light most favorable to the State, there is no evidence that the keys were in the ignition, nor did the trial court find such to be the case. The Omnibus DWI Act of 1983, from which the DWI statute came, was enacted because the legislature declared “that the act of driving a motor vehicle while under the influence...constitutes a serious and immediate threat to the safety of all citizens of this State[.]” The Emergency Clause to Act 549 of 1983. The purpose of Arkansas laws against driving while intoxicated is to prevent accidents and protect persons from injury. See, e.g., Benson v. State, 212 Ark. 905, 208 S.W.2d 767 (1948). The case law developed in this area makes clear that if a person does not place the keys in the ignition, then this scenario falls short of the proof necessary to establish actual physical control of the vehicle for purposes of DWI.2 Whether this demarcation line is reasonable or effective in attaining the purpose of ensuring public safety is not for our court to decide. It is, however, the law in Arkansas. The case law argued by both sides in this case are considered herein.
In Stephenson v. City of Fort Smith, 71 Ark. App. 190, 36 S.W.3d 754 (2000), Stephenson was found by police asleep in the parked vehicle, the motor was not running, and the keys were on the dashboard. We held that this was not “actual physical control” of the vehicle for purposes ofDWI statute, citing to Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). In Dowell, our supreme court held that the appellant was not in actual physical control where he was found asleep in his automobile, which was parked with motor not running, in a driveway of a business near the highway, with keys in the seat of the vehicle by his side. In Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985), Wiyott was found asleep behind the wheel of his car with the keys in the ignition, and when awakened by the police, Wiyott tried to start his car. Our supreme court held that this was sufficient evidence of actual physical control. The Wiyott case explained that the control contemplated meant more than the ability to stop an automobile, but meant the ability to keep from starting, to hold in subjection, to exercise directing influence over, and the authority to manage. As interpreted thus far by our supreme court and applied by our court, the issue of actual physical control has not turned on whether the defendant is awake when observed, whether the defendant is behind the wheel, or whether the engine is running. The supreme court in Dowell set out a bright-line rule that actual physical control begins when the keys are located in the ignition.
In the present appeal, the State did not prove that the keys were in the ignition. The trial court did not find that the keys were in the ignition, nor did any evidence show that the keys were in the ignition. Rather, the trial court accepted appellant’s version of events as true. The State did not counter appellant’s evidence that the car was not moveable unless and until the keys were placed in the ignition, nor do the dissenting judges disagree with that assertion. 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. Dowell v. State, supra. In this instance, the State failed to present sufficient evidence that appellant was a menace to public safety, as the statutory language “actual physical control” has been interpreted by our appellate courts.3 Therefore, the conviction is not supported by sufficient evidence of an essential element and must be reversed.
Reversed.
Crabtree, Baker, and Roaf, JJ., agree. Bird and Griffen, JJ., dissent.