MEMORANDUM

To: Professor A. Killenbeck From: Moshe Admon Date: November 11, 2013 RE:Buzz Doffen DWI - File 13-432

Question Presented Under the Arkansas Omnibus DWI Act, may an individual be found guilty of DWI when an anonymous tip regarding a drunk driver lead a police officer to find an individual sleeping on the ground 100 feet away from a wrecked golf cart with the key still in the ignition while a second set of footprints were found leading away from the golf cart, and when the individual was later tested to have a 0.35 BAC?

Brief Answer No.To be guilty of DWI an individual must: 1) have a blood alcohol concentration of 0.08 or more; and must have 2) operated or 3) have been in actual physical control; 4) of a motor vehicle.Circumstantial evidence can be enough to convict an individual of DWI, but the evidence must exclude every reasonable hypothesis but that of guilt.For the purpose of this memo, we accept that a golf cart is a vehicle and that Doffen is intoxicated because his BAC of 0.35 is well above the required 0.08.Here, the requirements for DWI are not met because there is not enough direct evidence to show operation and not enough circumstantial evidence to show actual physical control.In regards to lack of direct evidence to show operation, even though Doffen was found in the vicinity of the a partly submerged golf cart matching the description of an anonymous witness, the Deputy did not observe him driving, there was no evidence of intent to drive after the moment of arrest and he did not confess to driving.Similarly, in regard to lack of circumstantial evidence to show actual physical control, although the key was in the ignition Doffen was found lying asleep 100 feet away from the golf cart and was not in the drivers seat nor behind the steering wheel, he did not make any statements to the Deputy, there was lack of sufficient witness identification, and there was a second set of footprints leading away from the golf cart.These facts do not exclude every reasonable hypothesis but that of guilt and weigh against finding actual physical control.

Statement of Facts On September 7, 2013 Deputy Noel Travis of the Benton County Sheriffs Department arrested Mr. Buzz Doffen and charged him with DWI-4.Mr. Doffen has previously been convicted of three DWIs in Arkansas. At 00:31 hours on that day, Deputy Travis responded to a call from an anonymous tipster who stated that for the previous 30 minutes some drunk was recklessly driving a golf cart up and down a street in the Pinnacle Country Club.Deputy Travis arrived at the golf course at 00:52, exited his vehicle and walked down the fairway.The surrounding area was dark, and he relied on the illumination of his flashlight.He discovered Mr. Doffen asleep on the grass approximately 100 feet away from a golf cart partly submerged at the edge of the pond.The key was still in the ignition.There was a second set of footprints leading from the golf cart towards the neighboring homes which were mostly dark, but Deputy Travis did not see a second individual anywhere and did not see exactly where the footprints went. Deputy Travis awoke Mr. Doffen who had a strong odor of alcohol and had difficulty standing, which lead Deputy Travis to conclude that Mr. Doffen was intoxicated.Deputy Travis proceeded to ask Mr. Doffen if he was the owner of the golf cart and if he had driven it.Doffen responded to both questions by shrugging his shoulders.Deputy Travis conducted a final investigation of the area of with his flashlight but did not discover any other persons or objects in the immediate area. Deputy Travis determined Mr. Doffen was the driver of the golf cart that was reported by the anonymous witness since it fit what he was observing.A background check on Mr. Doffen revealed that he had previously been convicted of three DWIs in Arkansas, the first in May 2008, the second in November 2009 and the third in July 2011.Deputy Travis arrested Mr. Doffen, drove him to the Bentonville County jail and booked him at 01:46.Deputy Travis requested permission from Mr. Doffen to perform a gas chromatography test, to which he responded by shrugging his shoulders.He did not object to the test which registered a blood alcohol level of 0.35, after which Deputy Travis charged him with DWI-4. Applicable Statutes Ark. Code Ann. 565103(a)(b) (Supp. 2013) (a)It is unlawful and punishable as provided in this chapter for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.

(b)Itisunlawfulandpunishableasprovidedinthischapterforanypersontooperateorbein actual physical control of a motor vehicle if at that time the alcohol concentration in the person's breathorbloodwaseight-hundredths(0.08)ormorebaseduponthedefinitionofalcohol concentration in 5-65-204.

Ark. Code Ann. 565111(b)(3A) (Supp. 2013) (b)Any person who pleadsguilty or nolocontendere to or isfoundguilty of violating 5-65-103 or any other equivalent penal law of another state or foreign jurisdiction shall be imprisoned or shall be ordered to perform public service in lieu of jail as follows:

(3)(A)Foratleastone(1)yearbutnomorethansix(6)yearsforthefourthoffenseoccurring within five (5) years of the first offense or not less than one (1) year of community service and is guilty of a felony.

Discussion The state will not be able to prove a charge of DWI against Buzz Doffen.The statute requires the state must prove that the defendant had a BAC of 0.08 or higher and operated or was in actual physical control of a motor vehicle.Ark. Code Ann. 565103(a) (Supp. 2013).Here, the state can prove intoxication because Doffens BAC was 0.35.Further, for the purpose of this memo we accept that a golf cart is a vehicle.However, operation cannot be established because the state does not have sufficient direct evidence since Deputy Travis did not observe Doffen driving, Doffen did not admit to driving, and Doffen did not evidence any intent to drive the moment after he was arrested.As well, actual physical control cannot be established because the state does not have sufficient circumstantial evidence.Although the key was in the ignition of the golf cart, Doffen was found asleep 100 feet away from it and not in the drivers seat nor behind the steering wheel, and he did not make any statement or admission to the Deputy.Also, there is not sufficient witness identification to place Doffen as the driver of the golf cart.Additionally, a second set of footprints that were not Doffens were found leading away from the vehicle.These facts do not exclude every reasonable hypothesis but that of guilt and weigh against finding actual physical control.

1. Operation The state will not be able to prove that Doffen operated the golf cart while intoxicated.The Omnibus DWI Act requires that the defendant must have operated a motor vehicle.Ark. Code Ann. 565103(a).Proof of operation of a motor vehicle can be attained in three ways: (1) observation by the officer; (2) evidence of intent to drive after the moment of arrest; or (3) a confession by the defendant that he was driving.Azbill v. State, 285 Ark. 98, 101, 685 S.W.2d 162, 164 (1985). Although there are no Arkansas cases dealing with nonverbal communication, there is persuasive precedent from Illinois holding that if a defendant responds to an officer's questions nonverbally, the communication must be unambiguous.People v. Raibley, N.E.2d 1221, 1231 (Ill. App. Ct. 2003). In Raibley, a police officer asked the defendant if he consented to the seizure and viewing of a video tape, to which the defendant replied with a shrug.Id. at 1230.The court held that the defendant's shrug was not an unambiguous expression of consent.Id. at 1231. Here, Deputy Travis did not observe Doffen driving the vehicle, nor did Doffen evidence any intent to drive the moment he was arrested, since upon being awoken by the Deputy he merely became startled and jumped up.Additionally, when asked if he had been driving the golf cart, he simply shrugged his shoulders.Travis, 1, Sept. 12, 2013.Shrugging his shoulders was an ambiguous answer and cannot be upheld as a confession. Because none of the three elements required to prove the operation of a motor vehicle can be met, the state will not be able to prove that Doffen operated the golf cart while intoxicated.

2. Actual Physical Control The state will not be able to prove that Doffen was in actual physical control of the golf cart while intoxicated.Actual physical control is defined as more than the ability to stop an automobile, but [is] the ability to keep from starting, to hold in subjection, to exercise directing influence over, and the authority to manage.Wiyott v State, 284 Ark.399, 402, 683 S.W.2d. 220, 222 (1985) (quoting Hughes v. State, 535 P.2d. 1023 (OK Crim. App. 1975)). Actual physical control is an element that allows reliance on circumstantial evidence as opposed to the direct evidence needed to convict on the operation element.To prove a defendant guilty based on circumstantial evidence alone, such evidence must exclude every other reasonable hypothesis than the guilt of the accused.Cox v. State, 254 Ark. 1, 7, 491 S.W.2d 802, 807 (1973).Arkansas courts have found intoxicated individuals in actual physical control of a vehicle based on circumstantial evidence, including when a defendant was located in the drivers seat of a vehicle with the key in the ignition, based on a witness description later corroborated by an officer, or if the only logical conclusion was that the defendant was the only possible driver of the vehicle.Here, the court will consider the location of the key in the ignition, the physical location of Doffen 100 feet away from the golf cart in conjunction with his lack of statement to the Deputy, information gained from the anonymous witness, and the second set of footprints leading away from the vehicle.

Key in the ignition The location of the key in the ignition weighs heavily in favor of finding that Doffen was in actual physical control of the golf cart. Keys in the ignition of a vehicle while the driver is behind the wheel can lead the fact finder [to] infer actual physical control. . . .Hodge v. State, 27 Ark. App. 93, 97, 766 S.W.2d 619, 621 (1989).This is so even if the engine is not running.Bohanan v. State, 72 Ark. App. 422, 426, 38 S.W.3d 902, 905 (2001). In Hodge, the defendant was in actual physical control when an officer found his vehicle and observed that the key was in the ignition, that the motor was running, and [the intoxicated defendant] was positioned with his feet on the driver's side and his body keeled over towards the passenger side.Hodge, 27 Ark. at 95, 766 S.W.2d at 620.In Bohanan, the defendant was in actual physical control when he was found by an officer sleeping in the drivers seat of a vehicle with the key in the ignition and the engine off.Bohanan, 72 Ark. App. at 425, 38 S.W.3d at 904. Here, the key was in the ignition of the golf cart when it was found by Deputy Travis.Undoubtedly, a key left in the ignition while a defendant is in the vehicle intoxicated weighs heavily in finding that the defendant was in actual physical control because a key in the ignition provides the means to hold in subjection, to exercise directing influence over, and provides the authority to manage a vehicle.The key in the ignition combined with Doffens 0.35 BAC level weighs in favor of finding that he was in actual physical control of the golf cart.

Physical location of the defendant The physical location of Doffen 100 feet away from the golf cart and not in its drivers seat nor behind its steering wheel weighs against finding that Doffen was in actual physical control of the golf cart.Actual physical control can be inferred by the jury from circumstantial evidence that the accused was behind the wheel with the keys in the ignition.Hodge, 27 Ark. App. at 97, 766 S.W.2d at 621.Additionally, actual physical control can be inferred when the defendant is outside the vehicle and not in the drivers seat but admits to an officer that he was coming from another location and was the only person around the vehicle. Azbill, 285 Ark. at 99, 685 S.W.2d at 163. In Hodge, the defendant was in actual physical control when an officer found him intoxicated inside the vehicle with his feet on the driver's side and his body keeled over towards the passenger side [ ] while the key was in the ignition.Hodge, 27 Ark. App. at 95, 766 S.W.2d at 620.Similarly, in Azbill, the defendant was in actual physical control when he was found intoxicated outside the vehicle and informed the officer that he was coming from Jonesboro and that he was the only person around the vehicle.Azbill, 285 Ark. at 99, 685 S.W.2d at 163.The element of actual physical control was inferred because this statement excluded every reasonable hypothesis but that of guilt.Id. at 101, 685 S.W.2d at 164. Here, Doffen was found sleeping 100 feet outside the golf cart and not in the drivers seat nor behind the steering wheel.Doffens physical location did not allow him the ability to hold the golf cart in subjection, nor to exercise directing influence over it, nor provided him with the authority to manage it.Additionally, he never made any admissions to Deputy Travis that could exclude every other reasonable hypothesis but guilt.These facts weigh against finding that Doffen was in actual physical control of the golf cart.

Witness identification Lack of sufficient witness identification weighs against finding that Doffen was in actual physical control of the golf cart.For witness identification to substantiate actual physical control of a vehicle the witness must be able to physically identify the driver.Blair v. State, 103 Ark. App. 322, 323, 288 S.W.3d 713, 714 (2008).If a witness cannot directly identify the driver but only the vehicle, a police officer must corroborate the witness testimony with enough additional evidence so as to prove the suspect was in actual physical control.Nottingham v. State, 29 Ark. App. 95, 97, 778 S.W.2d 629, 630 (1989). In Blair, the defendant was in actual physical control when a witness notified the police that he had observed the defendants vehicle operating in an erratic manner, followed the defendant, stopped to talk to him, and that she smelled like a brewery.Blair, 103 Ark. App. at 323, 288 S.W.3d at 714.The police subsequently found the defendant exiting her vehicle from the drivers side door with the keys in her hand.Id. at 324, 288 S.W.3d at 715.Similarly, in Nottingham, the defendant was in actual physical control when a witness provided the police a physical description and location of a vehicle being driven erratically, and the responding officer found a matching vehicle parked in an uncommon location with its motor running.Nottingham, 29 Ark. App. at 97, 778 S.W.2d at 630.The witness identification was further corroborated when the officer found the intoxicated defendant sleeping inside the vehicle.Id. at 97, 778 S.W.2d at 630.Here, a witness that declined to identify himself called Central Dispatch, was patched through directly to Deputy Travis, and stated that he lived in Pinnacle Country Club, and that for the previous 30 minutes some drunk had been driving up and down Champion Boulevard like a maniac in a golf cart [and] . . . that the same individual was now doing donuts on the #14 fairway.Travis at 1. The witness did not physically identify the driver, distinguishing Blair.When Deputy Travis found the vehicle he did not find Doffen inside it, distinguishing Nottingham.Additionally, the witness declined to identify himself, so further inquiries by the state regarding the identity of the driver are impossible.Because the witness did not physically identify the driver, the Deputy found Doffen asleep 100 feet outside the golf cart, and no additional information can be furnished by the witness, this weighs against finding that Doffen was in actual physical control of the golf cart.

Second set of footprints and other circumstantial evidence The second set of footprints and lack of additional circumstantial evidence weighs against finding that Doffen was in actual physical control of the golf cart.To find actual physical control, circumstantial evidence must exclude every other reasonable hypothesis than the guilt of the accused.Cox v. State, 254 Ark. 1, 7, 491 S.W.2d 802, 807 (1973). The defendant will be inferred to have actual physical control and all alternative reasonable hypotheses will be excluded if an officer finds the defendant alone and intoxicated outside a vehicle and the defendant tells the officer that he arrived from another location and is the only person around the vehicle.Azbill, 285 Ark. at 99, 685 S.W.2d at 163.Similarly, the defendant will be inferred to have actual physical control and all alternative reasonable hypotheses will be excluded if he is found intoxicated outside a running vehicle and admits to driving, but employs an unreasonable story that he consumed the alcohol only after driving.Altes v. State, 286 Ark. 94, 96, 689 S.W.2d 541, 542 (1985).Additionally, although there are no Arkansas cases dealing with circumstantial evidence of an intoxicated defendant lying unconscious or asleep outside of a wrecked vehicle, there is persuasive precedent from Minnesota.There, it was held that a defendant who claims he is not the vehicles driver is inferred to have actual physical control, and all alternative reasonable hypotheses are excluded, when he is found intoxicated, unconscious and injured outside of a wrecked vehicle and in sufficient proximity to it, and no other injured people are found nearby.State v. Hughes, 355 N.W.2d 500, 501 (Minn. Ct. App. 1984).However, if a defendant is found in a condition where he does not have the ability to exercise directing influence over a vehicle or the authority to manage it, such as when the key is not in the ignition, other reasonable hypotheses are possible and the defendant will not be held to have had actual physical control over the vehicle. Dowell v. State, 283 Ark. 161, 162, 671 S.W.2d 740, 741 (1984). In Azbill, the defendant was inferred to have actual physical control when an officer found him intoxicated outside the vehicle and he informed the officer that he was coming from Jonesboro and that he was the only person around the vehicle.Azbill, 285 Ark. at 99, 685 S.W.2d at 163.The defendants statement lead the court to exclude every other reasonable hypothesis but the defendants actual physical control of the vehicle.Id. at 100, 685 S.W.2d at 163.Similarly, in Altes, the defendant was inferred to have actual physical control when an officer found the defendant by his stranded truck standing beside the door of his vehicle, the door was open, the motor was running, and he was drunk.Altes, 286 Ark. at 96, 689 S.W.2d at 542.The defendant has a 0.27 BAC.Id. at 95, 689 S.W.2d at 541.He admitted to driving the vehicle but claimed he consumed a large quantity of alcohol as fast as he could only after the truck became stuck in the ditch.Id. at 96, 689 S.W.2d at 542.The trial court found that his story about drinking the whiskey seem[ed] tailor-made to explain why the intoximeter reading was so high.Id. at 97, 689 S.W.2d at 542.The defendants unreasonable story in conjunction with his high BAC level lead the court to exclude every other reasonable hypothesis but the defendants actual physical control of the vehicle.Likewise, in Hughes, the defendant was inferred to have actual physical control even though he claimed he was just a passenger.Hughes, 355 N.W.2d at 502.The defendant was found intoxicated and lying unconscious in the weeds next to the ramp about six to eight feet from the motorcycle . . . bleeding from the head and face[ ] and no other injured people were found at the scene of the accident.Id. at 501.The circumstantial evidence lead the court to exclude every other reasonable hypothesis but the defendants actual physical control of the vehicle.Id. at 502.However, in Dowell, the defendant was not inferred to be in actual physical control when an officer found him intoxicated and asleep in his vehicle with the keys by his side and not in the ignition.Dowell, 283 Ark. at 161, 671 S.W.2d at 740.The court found that the defendant may not have been the person who drove the vehicle to where it was parked. If he drove it to the place where it was found he may have become intoxicated later.Id. at162, 671 S.W.2d at 741. Here, there was a second set of footprints leading from the golf cart towards the neighboring homes which were mostly dark.After searching, Deputy Travis did not see a second individual anywhere and did not see exactly where the footprints went.These additional footprints do not exclude every other reasonable hypothesis but Doffens actual physical control of the golf cart, because they present evidence that Doffen may not have been the person who drove the vehicle to where it was parked, as in Dowell.The possibility that Doffen may not have been the driver, in conjunction with Doffens silence when questioned by Deputy Travis, serves to distinguish Azbill, Altes, and Hughes.Moreover, Hughes can be further distinguished because in that case the defendant was found six to eight feet away from the vehicle, whereas Doffen was found 100 feet away from the golf cart, a distance which did not give him the ability to exercise directing influence over it or the authority to manage it.These facts weigh against finding that Doffen was in actual physical control of the golf cart.

Totality of factors for actual physical control Although the key in the ignition of the golf cart weighs in favor of finding that Doffen was in actual physical control of it, several other facts weigh strongly against finding actual physical control.Specifically, Doffens physical location 100 feet away from the golf cart, the lack of sufficient witness identification, the lack of any statement from Doffen to Deputy Travis and the second set of footprints leading away from the golf cart weigh against finding that Doffen was in actual physical control of the golf cart.

Conclusion and Recommendations The state will not be able to find Buzz Doffen guilty of DWI under the Omnibus DWI Act Ark. Code Ann. 565103(a)(b) (2013) or DWI-4 under the Omnibus DWI Act Ark. Code Ann. 565111 (b)(3A) (2013).