Lead Opinion
{1} In these consolidated cases, we are called upon to clarify the offense of driving while intoxicated (DWI) and define its parameters. We granted certiorari pursuant to NMSA 1978, § 34-5-14(B) (1972) in order to review two cases which have been consolidated to address whether the State can charge a defendant with DWI pursuant to NMSA 1978, § 66-8-102 (1997, prior to 1999 amendment) when the defendant is on private property and in actual physical control of a non-moving vehicle. After a careful and in-depth analysis of the applicable statutes, existing case law, and the policy underlying our DWI legislation, we reject any public/private property distinction with respect to the offense of DWI. As such, the State may charge a person who is in actual physical control of a non-moving vehicle with DWI despite the fact that he or she is on private property. Accordingly, we reverse the Court of Appeals’ decisions upholding the district court’s orders dismissing the charges against the defendants.
I.
{2} There are no disputed issues of fact in either of these consolidated cases. The parties have stipulated to the facts in their respective eases as follows. On January 10, 1998, an Aztec police officer responded to a dispatch call that reported an intoxicated driver in a Dodge truck with Texas license plate, RL0408. The officer located the described truck parked on private property with the Respondent, Chuck Wenger, seated in the driver’s seat. Although the engine of the vehicle was not running, the key was in the ignition. After conducting the standard field sobriety tests, the officer believed that Mr. Wenger was under the influence of an intoxicating liquor and arrested him for DWI. Mr. Wenger’s blood alcohol test results indicated .35 and .34 grams of alcohol in two hundred liters of breath — more than four times the legal limit.
{3} Similarly, on March 15, 1998, a Farmington police officer observed a vehicle parked in the private parking lot of a motel. The officer noticed an individual, later identified as the Respondent, Albert Johnson, sitting in the driver’s seat. Mr. Johnson was noticeably nodding his head in an exaggerated manner as if he were extremely fatigued. The vehicle’s engine was running, the key was in the ignition, and a large pool of condensation was found under the exhaust pipes, indicating that the car had possibly been at the location for three hours. Observing signs of intoxication, the officer conducted the standard field sobriety tests. As a result of these tests, Mr. Johnson was arrested for DWI. His breath test results indicated a blood alcohol level of .18 and .17 — more than twice the legal limit.
II.
{5} This Court must determine whether the Legislature intended to place a geographical limitation on the offense of DWI depending on the type of activity constituting the “driving” of a vehicle. To resolve this issue we must ascertain and interpret the Legislature’s intent in drafting the statutes governing this offense. The standard of review for issues of statutory interpretation and construction is de novo. See State v. Rowell,
{6} The issue presented herein necessitates the interpretation of Section 66-8-102, NMSA 1978, § 66-7-2 (1978), and NMSA 1978, § 66-1-4.4(K) (1991, prior to 1999 amendment). As we engage in our interpretation of these statutes we keep in mind basic rules of statutory construction. “The starting point in every case involving the construction of a statute is an examination of the language utilized by [the Legislature]” in drafting the pertinent statutory provisions. State v. Wood,
III.
{7} Our interpretation of the relevant statutory provisions leads us to the conclusion that there is no public/private property distinction in our DWI law. Section 66-8-102 states in pertinent part: “It is unlawful for any person who is under the influence of
{8} Moreover, the Legislature further defined the scope of Section 66-8-102 in Section 66-7-2. Section 66-7-2(A) provides the general geographical limitation: “The provisions of Article 7 of Chapter 66 NMSA 1978, relating to the operation of vehicles, refer exclusively to the operation of vehicles upon highways, except where a different place is specifically referred to in a given section.” Section 66-7-2(B), which by its express terms applies to DWI, provides an exception to the general geographical limitation: “The provisions of Section! ] ... 66-8-102 ... shall apply upon highways and elsewhere throughout the state.” (Emphasis added.) “Highway” is defined as “every way or place generally open to the use of the public as a matter of right for the purpose of vehicular travel, even though it may be temporarily closed or restricted for the purpose of construction, maintenance, repair or reconstruction.” NMSA 1978, § 66-l-4.8(B) (1991). By providing a definite exception in Section 66-7-2(B), the Legislature clearly intended to prohibit DWI in a geographical area that reached beyond that falling within the definition of “highway.” Analyzing these statutes together, therefore, we find that a person can violate Section 66-8-102 on public as well as private property. This interpretation is consistent with other jurisdictions which have determined that “elsewhere” encompasses both public and private property. See, e.g., Lunceford v. City of Northport,
{9} The Respondents ask us to go one step further in the interpretation of these statutes and request that this Court find a publie/private distinction based on the type of activity that constitutes “driv[ing]” under Section 66-8-102. It is well settled that a defendant can be charged with DWI under this section if: (1) the defendant is intoxicated and driving a moving vehicle on a public highway, see, e.g., State ex rel. Schwartz v. Kennedy,
{10} The express provisions of Section 66-8-102 provide no distinction between “actual physical control” and “driving” based on the location of its occurrence. The Respondents, however, base their contentions on this Court’s analysis in Boone,
{11} In reaching this holding, this Court concluded, as a matter of law, that the meaning of “drive” in Section 66-8-102 is unclear and therefore relied on the statutory provision defining the term “driver,” currently Section 66 — l^t^CK),
“driver” means every person who drives or is in actual physical control of a motor vehicle, including a motorcycle, upon a highway, who is exercising control over or steering a vehicle being towed by a motor vehicle or who operates or is in actual physical control of an off-highway motor vehicle}.]
(Emphasis added.) Through reference to this provision, this Court established that “actual physical control” of a vehicle is sufficient to support a DWI conviction.
{12} The Respondents argue that by relying on the definitional statute to support its holding in Boone, this Court incorporated the definition of “driver” into Section 66-8-102. Accordingly, they assert that this Court is limited when considering “actual physical control” to activity that takes place “upon a highway.” Therefore, relying on this definitional statute, coupled with the fact that they were on private property and not “upon a highway,” the Respondents assert they cannot be charged with DWI. The Respondents’ analysis, however, is incomplete.
{13} Applying rules of grammar to Section 66-l-4.4(K), the word “drives” and the phrase “actual physical control” are both modified by the phrase “a motor vehicle, including a motorcycle,” all of which is in turn modified by the phrase “upon a highway.” See Wilson v. Denver,
{14} Boone supports our conclusion today. This Court recognized the unique nature of the DWI statute in footnote 1 of Boone.
We note that the language in Subsection [66 — 1—4.4 (K) ] generally limiting the definition of drivers to persons “upon a highway” does not apply to the offense of DWI. At the time it enacted that definition the Legislature expressly and specifically provided that Section 66-8-102 “shall apply upon highways and elsewhere throughout the state.” [Section 66-7-2]. This specific statute will be construed as an exception to the general definitional statute. [Citations omitted.]
IV.
{15} The Court of Appeals in Wenger, while agreeing with the Respondents’ interpretations of the pertinent statutes, also based its holding on UJI 144511. 1999— NMCA-092, ¶¶ 14-15,
A person is “operating” a motor vehicle if the person is: [driving the motor vehicle;] [or] [in actual physical control whether or not the vehicle is moving if the vehicle is on a highway;] [or] [exercising control over or steering a vehicle being towed by a motor vehicle;] [or] [in actual physical control of an off-highway motor vehicle].
The committee commentary states:
Under this instruction anyone under the influence of alcohol or drugs who actually drives a motor vehicle, who exercises control over a vehicle being towed by a motor vehicle, or who operates or is in actual physical control of an off-highway vehicle, anywhere in the state, on the highway or off, is guilty of driving while under theinfluence. In addition, anyone under the influence of alcohol or drugs who is in actual physical control of a motor vehicle on a street, even if the person is asleep behind the wheel and not actually driving the vehicle, is guilty of driving while under the influence. See [Boone v. ]State v. Boone, 105 N.M. 223 ,731 P.2d 366 (1986). However, if the person is in physical control of the vehicle, but not actually driving the vehicle, and the vehicle is off the road, that person is not guilty of driving while under the influence.
We recognize that this Court’s approval of this jury instruction may have served to confuse matters further. There is “a presumption that the instructions [adopted by this Court from proposals by standing committees of the Court] are correct statements of law.” State v. Wilson,
{16} In analyzing UJI 14-4511, the Court of Appeals characterized as dicta our statement in Boone,
Y.
{17} The purpose of our DWI legislation is to protect the public from the risk of harm posed by intoxicated drivers. See Johnson,
{18} The Court of Appeals observed that charging intoxicated drivers on highways with DWI and applying the offense to moving vehicles on private property “clearly serves the underlying policies of the DWI statute.” Wenger,
{19} Although the Respondents do not challenge the finding that they were in actual physical control of them vehicles when they were arrested for DWI, we find it helpful to define “actual physical control” in this ease. As our prior case law illustrates, a person is in actual physical control over a vehicle when he or she exercises direct influence over the vehicle. See, e.g., Boone,
{20} A person under the influence of intoxicating liquor or drugs who exerts actual physical control over a vehicle, is a threat to the safety and welfare of the public. See Harrison,
{21} There is no significant difference between the danger posed by an intoxicated
{22} The Court of Appeals and the Respondents assert that punishing intoxicated persons who are in actual physical control of a non-moving vehicle on private property would encourage those persons to commence or continue driving even though they felt impaired. We recognize the rationale behind the policy advanced by the Court of Appeals and the Respondents. We believe, however, that encouraging intoxicated drivers to pull completely off the public highway in search of private property when the driver decides he or she is too impaired to continue driving, may pose a greater risk to the public than allowing the driver to simply pull over to the shoulder of the highway. As the Court of Appeals acknowledged, and prior case law holds, allowing an intoxicated person to exercise actual physical control of a non-moving vehicle on a public highway is not in the best interest of public safety. See Harrison,
{23} Intoxicated drivers have options other than exerting actual physical control over them vehicles. Intoxicated persons can elect a designated driver, or call a friend, family member, or taxi to drive them home. They need not place the public and themselves at risk at all. We cannot place the safety of the public in the hands of drivers whose decision making process is impaired by intoxicating liquor, and allow them to decide the severity of their impairment and the risk to the public of their commencing or continuing driving. We conclude, therefore, that the Legislature did not intend to distinguish between DWI offenses on public property and those on private property, regardless of whether the person was driving or in actual physical control of their vehicle.
{24} Therefore, we hold that the State may charge a person with DWI pursuant to Section 66-8-102, despite the fact that the defendant is found on private property in actual physical control of a non-moving vehicle. As a result, we reverse the Court of Appeals’ opinion in Wenger,
{25} IT IS SO ORDERED.
Notes
. In 1986, when Boone was decided, the definitional provision of “driver" was found in NMSA 1978, N.M. Laws, Ch. 35, § 4, which in all pertinent aspects is the same as the current definition found at Section 66-l-4.4(K). To minimize any confusion, we will hereinafter refer to Section 66-l-4.4(K) when discussing the general definition of "driver.”
. Our conclusion is based on express statutory provisions enacted by the Legislature with respect to the offense of DWI. We are not engaging in a general/specific statute analysis as we did in State v. Cleve,
. The dissent also relies too heavily on Section 66-l-4.4(K). The crucial distinction between the majority opinion and the dissent is not in the construction of Section 66-l-4.4(K) but in the fact that the dissent places more emphasis on the general definitional statute than on the statutory provisions that more specifically apply to DWI; Sections 66-8-102 and 66-7-2. This construction of Section 66-8-102 more closely effectuates the intent of the Legislature.
. Our statutory construction does not raise concerns regarding the due process rights of the Respondents. The Respondents had fair warning that their conduct would constitute a violation of Section 66-8-102. The test in determining whether such an interpretation and retroactive application of a statute offends due process is whether the construction actually given the statute was foreseeable. See Bouie v. City of Columbia,
Dissenting Opinion
(dissenting)
{26} I respectfully dissent. I would affirm the formal opinion of the Court of Appeals in State v. Wenger,
{27} The State has argued that under the Court of Appeals’ analysis, NMSA 1978, § 66-7-2 (1978) becomes meaningless. I respectfully disagree with this argument. Section 66-7-2(B) states, in part, that NMSA 1978, § 66-8-102 (1997, prior to 1999 amendment) applies upon highways and elsewhere throughout the state. Under the Court of Appeals’ analysis, Section 66-8-102 does apply elsewhere throughout the state; it applies elsewhere throughout the State when the defendant is found to have been driving, rather than only in actual physical control.
{28} The majority concludes that the Court of Appeals erred in construing the “upon a highway” language of NMSA 1978, § 66-l-4.4(K) (1991, prior to 1999 amendment) to modify “in actual physical control” but not “drives.”
Applying rules of grammar to Section 66-1-4.4(K), the word “drives” and the phrase “actual physical control” are both modified by the phrase “a motor vehicle, including a motorcycle,” all of which is in turn modified by the phrase “upon a highway.”
See Majority Opinion, ¶ 13. I respectfully disagree with this conclusion.
{29} We have previously explained that in construing statutes, “[Rjelative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote.” Hale v. Basin Motor Co.,
{30} Section 66-l-4.4(K) states:
“driver” means every person who drives or is in actual physical control of a motor vehicle, including a motorcycle, upon a highway, who is exercising control over or steering a vehicle being towed by a motor vehicle or who operates or is in actual physical control of an off-highway motor vehicle.
Applying the last antecedent rule to the definition of driver under Section 66-l-4.4(K), the phrase “upon a highway” modifies the term “motor vehicle,” which in turn modifies the phrase “in actual physical control.” The term “motor vehicle” does not modify the term “drives.” See Hale,
{31} The commentary to our uniform jury instruction, NMRA 2000 UJI 14-4511, seems to me to rely on this distinction between “driving” and being in “actual physical control,” and to make a relatively coherent scheme of our statute and cases. The committee commentary accompanying UJI 14-4511 provides that:
if the person is in physical control of the vehicle, but not actually driving the vehicle, and the vehicle is off the road, that person is not guilty of driving while under the influence.
The Court of Appeals, in relying on the statutory distinction between “driving” and “actual physical control” and our uniform jury instruction, seems to me to make an appropriate choice in statutory interpretation.
{32} Any other statutory construction in light of our cases seems to me to present constitutional concerns regarding the due process rights of the Defendants. “[D]ue process bars courts from applying a novel construction of a criminal statute to conduct
{33} Prior to our decision in this case, neither the statutory language of Section 66-8-102(A) nor any of our prior holdings would have informed a defendant that being in actual physical control of a motor vehicle, while intoxicated, when the vehicle is not located on a highway is an illegal act. The sole potential basis upon which notice might be premised is the dicta in footnote 1 of Boone, stating that the Court did not believe that the language generally limiting the definition of “drivers” to persons “upon a highway” applies to the offense of DWI.
{34} In addition, I have concerns about whether Boone was correctly decided. Section 66-8-102(A) provides:
It is unlawful for any person who is under the influence of intoxicating liquor to drive any vehicle within this state.
{35} In Boone, we stated that the DWI statute is ambiguous because the meaning of “drive” is unclear.
{36} The Court’s logic in so holding is unclear. The term “driver” includes persons who drive or are in actual physical control of a motor vehicle. The Legislature’s usage of the conjunction “or” between “drives” and “in actual physical control” seems a strong indication that the Legislature did not consider the term “drives” to include “in actual physical control.” To conclude that the term “drives” is coextensive with the statutory definition of “driver” and thus includes all situations where a driver is in actual physical control of a vehicle seems to me to require something more than the statutory analysis we performed in Boone. Perhaps we should never have equated the two terms and instead should have restricted our remarks to stating that the seriousness of the DWI problem in our state justified equating the two terms, but that such a task “requires legislative therapy, not judicial surgery.” State v. Leiding,
{37} For these reasons, I would affirm.