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DUI Manslaughter — By Proxy

N.J. Man Faces Manslaughter in

DUI Crash — But He Wasn’t in Car

That is what has happened to Kenneth Powell, who is facing charges of manslaughter and other charges in the July 2000 death of New Jersey Navy Ensign John Elliott in a drunken driving accident.

Powell, 40, was not directly involved in the accident — he wasn't behind the wheel, wasn't a passenger in either of the vehicles involved, and was not charged with drunken driving.

But his friend Michael Pangle was. Hours before the fatal accident, Pangle had been arrested for driving while intoxicated and had a .21 blood-alcohol level — more than twice the legal limit in New Jersey.

Powell's troubles began when New Jersey State Police called him to pick up Pangle. He drove Pangle back to Pangle's car — and that was the last time he saw him alive.

Shortly afterward, Pangle, still intoxicated, drove his car head on into Elliott's vehicle, killing himself and Elliott and injuring Elliott's girlfriend.

The Debate of Accountability

Police say they fully informed Powell of Pangle's condition and that he was not to be allowed to drive. They have also said Pangle was clearly intoxicated, barely able to stand and his speech was slurred. Powell's common sense, they have argued, also would have told him that Pangle could not drive.

"The state police followed every rule, every regulation on the books," state police spokesman John Hagerty said at the time of Powell's indictment. "When [Powell] got to state police barracks, his license was checked and he signed a form saying he'd take the individual home. ... [Powell] didn't do his job, pure and simple."

But Powell says he did not realize Pangle was drunk. He and his attorney argue that the police are really responsible for the deaths of two people because they neglected to clearly and fully inform him of Pangle's condition.

"The state police did not tell Mr. Powell, certainly not in a clear and concise manner, Mr. Pangle's condition and his inability to drive," said Powell's attorney, Carl Roeder. "The state police essentially handed over the keys to Mr. Pangle and all the ability to get into this tragic accident. … We believe that this matter was totally mishandled by the state police."

A Law Too Late

Elliott's death prompted the New Jersey Legislature to pass a new measure, dubbed "John"s Law" in the ensign's honor, in April 2001. The law allows police to hold drunken drivers' cars for 12 hours before allowing them to reclaim their vehicles, and calls on state police to fully inform parties who pick up drunken drivers of the ramifications and consequences they would face if they put the driver back behind the wheel.

Powell was initially charged with allowing an intoxicated person to operate a motor vehicle after the accident. He could not be prosecuted under John's Law, since it was not in existence at the time of the crash. But the furor surrounding Elliott's death led to his indictment on charges of manslaughter, vehicular homicide and aggravated assault after the passage of the new law.

Powell and his attorney believe John's Law was needed. But they also believe it acknowledges the shortcomings of the government — and the New Jersey State Police — in the handling of drunken driving cases and the circumstances that led to Elliott's death.

"Well, it's definitely a way of addressing of a problem that has existed for a long time," said Roeder. "Unfortunately, it took an extreme tragedy such as this for the state Legislature to address the problem. Mr. Powell has been charged in this case as no other person has been. The law passed is supposed to prevent this type of accident from ever happening again — John's Law is designed to do this, be a safeguard against these circumstances."

Potential Prosecution Floodgates

New Jersey State Police have said they followed all the proper procedures in handling Pangle's DUI case. Roeder argues that holes in New Jersey's DUI laws enabled the fatal accident to happen. There was nothing, he said, in New Jersey's laws at the time that made Powell's alleged actions illegal. And charging Powell, he says, opens the floodgates of prosecution: Anyone who enables a driver to become intoxicated and drive should be prosecuted.

"The way they've interpreted DUI law in the state of New Jersey, if you're going to charge my client, then he was in no different a position than a gas station attendant who may notice that a driver may not be equipped to drive," said Roeder. "However, that gas station attendant takes money from the driver, facilitating or making it easier for the driver to get into an accident. Under the construction of the law, the gas station attendant is equally responsible. We think it's a stretch.

"There's no law [in New Jersey] requiring the duty to report [potential] drunk drivers," Roeder added. "We address that issue [in the case] with bridge toll takers. … They're in a position to notice drunk drivers. The fact that they took money is an affirmative act that facilitates an accident — they do not have to do that. Mr. Powell would have never been in the position he was in if the state police hadn't called him to begin with. He would have remained asleep in bed."

Still, some experts say the prosecution of third parties in cases like Powell's is fair because everyone who contributes to drunken driving crashes must be punished.

"MADD believes it is completely fair to charge third parties in cases such as these," said Wendy Hamilton, national vice president of Mothers Against Drunk Driving. "We don't call them 'accidents' — people make a choice when they decide to drink and drive. We have precedence for such prosecutions in social host and dram shop laws, and people need to be held responsible."

Under those laws, private hosts and liquor establishments can be held liable for their guests' or patrons' actions if they drink too much. In 1984, the New Jersey Supreme Court ruled that a social host could be held liable for damages if his guests were involved in drunken driving crashes.

A Failure of the System

At the time of Elliott's death, New Jersey had no impoundment laws, no John's Law. According to MADD, there are only 13 states besides New Jersey that have DUI car impoundment laws.

"That's the tragedy of this case," Roeder said. "It [the law] failed Mr. Elliott, it failed Mr. Powell, it failed everyone in this case. There are three victims in this case, not two."

While acknowledging that no one can foresee tragic accidents, experts say it often takes a tragedy for states to review certain laws or address long-standing problems seriously. But, they say, a death like Elliott's could have been prevented. While not commenting directly on whether more third parties in DUI cases like Powell should be prosecuted to prevent similar accidents, some experts believe the legislative system and perhaps the police failed Elliott.

"Whether people have a moral obligation not to let drunk drivers get behind the wheel is a question in and of itself," said John Moulden, president of the National Commission Against Drunk Driving. "But it's appropriate to look at the failure of a system that did not hold a person until he was sober. Certainly, he should not have been released."

Others say the passage of John's Law in New Jersey was important because it focused on an overlooked problem that probably happened on countless previous occasions.

"I'm willing to stake my life on the possibility that cases like the one in New Jersey have happened several times before," said Hamilton. "That's why it was important to pass John's Law. And currently there similar legislation pending in Maryland."

Charged as an Accomplice

First Assistant Salem County Prosecutor William Brennan declined to comment on the case, citing a need to protect his case and concern over the victim and the victim's family. In the indictment against Powell, prosecutors allege that he was an accomplice to Pangle. Prosecutors have said that Pangle was clearly drunk.

The defense disagrees, maintaining that the state police had the training to pick out an intoxicated person, and that they had a duty to clearly tell Powell what to do with Pangle to keep him from getting back behind the wheel.

"The state troopers are trained individuals. What's obvious to the state troopers may not be to untrained individuals like Mr. Powell," said Roeder. "They had a duty to keep Mr. Pangle off the road. He [Powell] didn't have special expertise."

Roeder said he had no evidence that suggests that Pangle resumed drinking after he was returned to his car.

He said he is investigating the possibility that the police may not have followed the proper procedures with Pangle and is trying to find out whether any of the officers in the case were disciplined or reprimanded internally.

A trial date has not been set for Powell. He has a status hearing set for next week. Prosecutors hope the trial will be in late spring.

-- Anonymous, January 17, 2002