- The Washington Times - Wednesday, July 31, 2002

SALEM, N.J. (AP) A 40-year-old laborer is on trial in New Jersey in a groundbreaking case that experts say could clear the way for the prosecution of anyone who lets a drunken driver get behind the wheel.
Kenneth Powell was asleep at home two years ago when police called and asked him to pick up best friend Michael Pangle, who had been arrested for drunken driving after a drinking session in a strip club.
Mr. Powell picked up Mr. Pangle and took his friend back to his sport utility vehicle, which was parked beside the road where he had been arrested.
Mr. Pangle, 37, drove off into the night. Less than an hour later, his vehicle collided with another car, killing him and 22-year-old Navy Ensign John Elliott, who was headed to his mother's birthday party.
Tests revealed Mr. Pangle had a 0.26 blood-alcohol content when he died, more than twice the legal limit.
Prosecutors blamed Mr. Powell for letting Mr. Pangle get behind the wheel and charged him with both deaths. He faces up to 15 years in prison if convicted of manslaughter, vehicular homicide and aggravated assault by auto.
"Kenneth Powell made a series of conscious decisions to set that whole thing in motion, even though he knew better," prosecutor Michael Ostrowski told jurors July 17. "Nobody is here saying he intended anyone to get hurt. But he intended to set that reckless conduct in motion, knowing there was a real risk."
Attorneys for Mr. Powell, who has yet to talk publicly about the case, contend that state police bear responsibility for giving Mr. Pangle his car keys and giving him directions back to the vehicle.
Holding Mr. Powell accountable would allow the prosecution of toll takers, gas station attendants and anyone else who encounters a drunken driver and fails to stop him from driving, defense attorney Carl Roeder said.
The case marks the first time a friend with no direct involvement in a drunken-driving accident has been charged for not stopping the driver, according to defense attorneys and Mothers Against Drunk Driving officials.
Frank K. Russo, a defense lawyer and former Florida prosecutor, says Mr. Powell's fate will hinge on whether witnesses show that Mr. Pangle was so obviously drunk when Mr. Powell met him at the police station that he should have known his friend posed a threat to other drivers.
"As a third party, to what extent are you obligated to take the keys?" Mr. Russo said. "You could be setting yourself up for battery or a disorderly conduct charge if you get into a fight and a neighbor or someone else calls to report it."
Gary Trichter, a lawyer who heads the Houston-based National College of DUI Defense Inc., said he knew of no other case in which a third party like Mr. Powell who hadn't served any alcohol to Mr. Pangle and didn't own or operate the vehicle has been charged.
He said it was wrong to hold Mr. Powell accountable when state police had implicitly given their approval by releasing him and giving his keys back.
"Let's take this to its logical conclusion. The state, by prosecuting this guy, is saying this guy should have fought him, used physical force to stop him," Mr. Trichter said.
The case has already changed New Jersey law. The Legislature passed a bill last year giving police the power to impound the vehicles of drunken drivers for up to 12 hours after their arrest. Similar federal legislation is pending.
"The introduction of [that legislation] has given us hope that John did not die in vain, that he will not be forgotten and that in his name, lives will be saved across the nation," said John Elliott's father, William Elliott.

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