Fred BOONE, Petitioner, v. STATE of New Mexico, Respondent.
No. 16085.
Supreme Court of New Mexico.
Dec. 31, 1986.
Rehearing Denied Feb. 3, 1987.
731 P.2d 366
The judgment of the trial court is reversed with instructions to enter summary judgment for defendants and to deny summary judgment to plaintiff.
IT IS SO ORDERED.
STOWERS, C.J., and RIORDAN, J., concur.
Winston Roberts-Hohl, Santa Fe, Morris Stagner, Dan B. Buzzard, Clovis, for petitioner.
Paul Bardacke, Atty. Gen., Charles D. Noland, Asst. Atty. Gen., Santa Fe, for respondent.
STOWERS, Chief Justice.
Defendant Fred Boone was arrested without a warrant and charged with driving while under the influence of intoxicating liquor and drugs (DWI) after police officers discovered him in the driver‘s seat of his automobile, stopped in a traffic lane late at night with the automobile‘s engine running but its lights off. See
We granted certiorari, and now affirm the Court of Appeals’ decision in part and reverse it in part. This case presents the following issues:
(1) Is motion of the vehicle a necessary element of the misdemeanor offense of DWI under
(2) Did the trial court err in ruling the warrantless arrest unlawful on the ground that the arresting officer had no probable cause to believe the misdemeanor offense of DWI had been committed in his presence?
(3) Did the Court of Appeals err in reversing the trial court‘s finding that defendant was arrested at the time he was requested to take the field sobriety test and not later when he formally was placed under arrest?
We hold that the offense of DWI under
I. DWI under Section 66-8-102.
Defendant draws our attention to the fact that prior to 1979,
From 1953 until 1978, our Motor Vehicle Code made it unlawful for any person under the influence of intoxicating liquor “to drive or be in actual physical control of any vehicle within this state.” 1953 N.M.Laws, ch. 139, § 54 (codified as amended at
In 1978, the Motor Vehicle Code was rewritten substantially, and the definition of “driver” was amended to encompass “every person who drives or is in actual physical control of a motor vehicle * * * or who is exercising control over, or steering, a vehicle being towed by a motor vehicle.” 1978 N.M.Laws, ch. 35, § 4(B)(17) (codified as amended at
The Legislature could have conformed
II. Warrantless Arrest for Misdemeanor Committed in the Presence of Officer.
We long have held that, in the absence of statutory authority, a duly authorized peace officer may make an arrest for a misdemeanor without a warrant only if he has probable cause or reasonable grounds to believe that the offense has been committed in his presence. See State v. Luna, 93 N.M. 773, 777, 606 P.2d 183, 187 (1980); City of Roswell v. Mayer, 78 N.M. 533, 534, 433 P.2d 757, 758 (1967); Cave v. Cooley, 48 N.M. 478, 481-82, 152 P.2d 886, 888 (1944). The trial court in the present case concluded that defendant‘s arrest was unlawful because the police officer had no probable cause to believe that the offense of DWI was being committed in his presence when he discovered defendant‘s stationary automobile.
The trial court‘s holding clearly was premised upon its erroneous conclusion that
However, we do not approve of the rationale of the Court of Appeals’ decision. Assuming that motion of the vehicle was an element of the offense, the Court of Appeals held that an officer may make a warrantless arrest for the misdemeanor offense of DWI committed in his presence when he reasonably can infer from facts known to him through his senses that a person under the influence was driving a vehicle. The Court of Appeals’ expansion of the meaning of the requirement that the offense be committed “in the presence of” the officer is unnecessary to the determination of this case because, under our interpretation of
The record indicates that the officer found defendant in the driver‘s seat of his automobile, conscious, parked in a traffic lane with the automobile‘s engine running
III. Time of Arrest.
The trial court concluded that defendant was arrested at the time he was requested to take the field sobriety test, prior to the time he failed the test and formally was arrested and taken into police custody. The Court of Appeals reversed that ruling, holding that because the officer did not force or coerce defendant into taking the test and because defendant complied without objection, there was no arrest, seizure, or detention in violation of the fourth amendment. See
A person is arrested when his freedom of action is restricted by a police officer and he is subject to the control of the officer. State v. Frazier, 88 N.M. 103, 105, 537 P.2d 711, 713 (Ct.App.1975). The question exactly when has an arrest taken place is in the first instance for the trial court to determine. Cf. Berkemer v. McCarty, 468 U.S. 420, 441, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984) (custody). The appellate court determines only whether the evidence, viewed in the light most favorable to the trial court‘s finding, substantially supports the finding. Cf. State v. Swise, 100 N.M. 256, 258, 669 P.2d 732, 734 (1983) (custodial interrogation). We hold that substantial evidence supports the trial court‘s finding that defendant was arrested when he was asked to take a field sobriety test and further hold that the Court of Appeals erred in rejecting that finding.
Because
In conclusion, we affirm the trial court‘s finding that defendant was arrested at the time he was requested to take a field sobriety test. Because we hold that
RIORDAN and FEDERICI, JJ., concur.
SOSA, Senior Justice, and WALTERS, J., dissent.
WALTERS, Justice (dissenting).
The majority opinion goes too far. Although we might agree that, in some circumstances, it is not necessary that a vehicle be in motion at the time the arresting officer observes the driver‘s intoxication, in order to establish probable cause to arrest without a warrant, those circumstances did not exist in the instant case.
Collected at 74 A.L.R.3d 1138-1166, and the supplement thereto, are cases which deal with arrests of drunken drivers. Seventeen jurisdictions apparently have considered that issue. Only five have held that presence of the officer at the time of the commission of the act of driving while intoxicated is not required. Of those five jurisdictions, in only one case was it held that there was probable cause to arrest when the officer deduced that the intoxicated person had been driving before he was found “passed out” at the scene of a one-car accident. In every other case, the arrest was declared unlawful, or it was held lawful because the defendant admitted he had been driving while intoxicated or an eyewitness had told the officer that he had seen the defendant driving immediately before the accident or the arrest.
In the instant case, there was no evidence of how long the car had been parked, or when defendant became intoxicated. There is nothing to refute an equally logical inference that defendant realized at some point that he was, or was becoming, intoxicated, and he stopped driving before the alcohol impaired his ability to drive. None of the circumstances present in any of the cases of the annotation are present in the case now before us.
That is not to say that defendant could not have been charged with other violations of the Motor Vehicle Code; we are only concerned here with the violation he was charged with. When the facts would just as easily permit the inference that defendant stopped his car to avoid a DWI violation that could result had he continued to drive, it is inconsistent, as well as bad law, to signal intoxicated persons that they might just as well continue driving because they will be arrested for DWI whether they stop or not. The rationale of the majority opinion would apply as easily to anyone sitting in a parked car in front of his own house or in front of any establishment, if the arresting officer smelled alcohol and observed slurred speech. The record, as it stands, is without any corroboration of the officer‘s assumption that defendant stopped driving only after he had become intoxicated.
Even under the convoluted rationale of the majority opinion that attempts to illustrate why the meaning of “drive” is unclear, there was still no evidence that defendant was driving while intoxicated, was in actual control of the vehicle, was exercising control over it, or was steering it while it was being towed.
Finally, the determination of probable cause should be left up to the trial judge. See State v. Copeland, 105 N.M. 27, 727 P.2d 1342 (Ct.App.), cert. denied, 104 N.M. 702, 726 P.2d 856 (1986). Whether or not the trial judge felt that one of the elements of the violation required that the car had to be in motion, he also found no probable cause. The latter finding well could have been based on lack of evidence to show how long the car had been parked, when defendant became intoxicated, or whether he had been driving it after he became intoxicated.
If this Court is to decide, merely as a clarification of the law, that a car in motion is not always necessary to support a charge of DWI, it should nevertheless sus-
For the foregoing reasons, we are unable to agree with the majority opinion and, therefore, we respectfully dissent.
SOSA, Senior Justice, concurs.