STATE of New Mexico, Plaintiff-Petitioner, v. Albert JOHNSON, Defendant-Respondent. State of New Mexico, Plaintiff-Petitioner, v. Chuck Wenger, Defendant-Respondent.
Nos. 25,950, 25,796.
Supreme Court of New Mexico.
Dec. 20, 2000.
2001-NMSC-001 | 15 P.3d 1233
BACA, Justice.
Phyllis H. Subin, Chief Public Defender, Thomas DeMartino, Assistant Public Defender, Liane E. Kerr, Albuquerque, NM, for Respondents.
OPINION
BACA, Justice.
{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
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 cases 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, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995).
{6} The issue presented herein necessitates the interpretation of
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.
{8} Moreover, the Legislature further defined the scope of
{9} The Respondents ask us to go one step further in the interpretation of these statutes and request that this Court find a public/private distinction based on the type of activity that constitutes “driv[ing]” under
{10} The express provisions of
{11} In reaching this holding, this Court concluded, as a matter of law, that the meaning of “drive” in
“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
{13} Applying rules of grammar to
{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.]
105 N.M. at 226 n. 1, 731 P.2d at 369 n. 1. Today, we simply acknowledge the validity of that reasoning and extend the same rationale to define the geographical reach of the DWI statute—an issue not triggered by the facts in Boone. As noted in footnote 1 of Boone, therefore, the general definitional statute, which limits the definition of “driver” to persons “upon a highway,” does not apply to the offense of DWI. Accordingly, we find that
IV.
{15} The Court of Appeals in Wenger, while agreeing with the Respondents’ interpretations of the pertinent statutes, also based its holding on UJI 14-4511. 1999-NMCA-092, ¶¶ 14-15, 127 N.M. 625, 985 P.2d 1205. UJI 14-4511 states:
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 the influence. 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, 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994). Because we have not previously considered UJI 14-4511, however, the Court of Appeals was not bound by the UJI in its interpretations of
{16} In analyzing UJI 14-4511, the Court of Appeals characterized as dicta our statement in Boone, 105 N.M. at 226 n. 1, 731 P.2d at 369 n. 1, that the phrase “upon a highway” from the statutory definition of “driver” does not apply to the crime of DWI, and further determined that UJI 14-4511 “more faithfully reflects the statutory language” than footnote 1 in Boone. Wenger, 1999-NMCA-092, ¶ 15, 127 N.M. 625, 985 P.2d 1205. While we agree with the Court of Appeals that footnote 1 in Boone was dicta and not binding authority, the Court of Appeals should give such language adequate deference and not disregard it summarily. See Fields v. D & R Tank & Equip. Co., 103 N.M. 141, 144, 703 P.2d 918, 921 (Ct.App.1985). Contrary to the Court of Appeals’ analysis, as discussed above, UJI 14-4511 does not faithfully reflect the pertinent statutory language of
V.
{17} The purpose of our DWI legislation is to protect the public from the risk of harm posed by intoxicated drivers. See Johnson, 108 N.M. at 634, 776 P.2d at 1253. “A motor vehicle is regarded as a source of danger when operated carelessly or by one whose responsiveness is diminished by intoxication.” City of Kansas City v. Troutner, 544 S.W.2d 295, 299 (Mo.Ct.App.1976). Intoxicated drivers place the public, as well as themselves, at risk. See Harrison, 115 N.M. at 77, 846 P.2d at 1086. As such, the potential harm that can result is much greater than if the intoxicated driver was the only one in danger. See id. Therefore, “the public‘s interest in deterring individuals from driving while intoxicated is compelling.” id. The policy underlying the DWI statute is to “prevent individuals from driving or exercising actual physical control over a vehicle when they, either mentally or physically, or both, are unable to exercise the clear judgment and steady hand necessary to handle a vehicle with safety both to themselves and the public.” Id.; see also Richardson, 113
{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, 1999-NMCA-092, ¶ 17, 127 N.M. 625, 985 P.2d 1205. The Court proclaimed, however, that “[t]he application of the DWI statute to stationary vehicles on private . . . property would not as clearly serve such purposes.” Id. Additionally, Respondents argue that “the State‘s desire to penalize sends the wrong message to the public, for it would encourage drunk drivers, apprehensive about being arrested, to attempt to reach their destination while endangering others on the highway.” According to the Respondents, actual physical control of a vehicle is less of a threat to the public than “driving.” Accordingly, they conclude that it is reasonable to confine the offense of DWI, when a person is exercising actual physical control of a vehicle, to public highways. Moreover, in their view, it is also reasonable to allow an intoxicated driver to pull completely off the highway to “sleep it off” as long as they are on private property. We disagree.
{19} Although the Respondents do not challenge the finding that they were in actual physical control of their vehicles when they were arrested for DWI, we find it helpful to define “actual physical control” in this case. 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, 105 N.M. at 224, 731 P.2d at 367 (upholding a conviction for DWI where the defendant was discovered in the driver‘s seat of his automobile with the engine running); State v. Grace, 1999-NMCA-148, ¶¶ 12-13, 128 N.M. 379, 993 P.2d 93 (finding substantial evidence of “driving activity” where the defendant was “passed out” in the driver‘s seat of his vehicle with the engine running), cert. denied, 128 N.M. 149, 990 P.2d 823 (1999); State v. Rivera, 1997-NMCA-102, ¶¶ 2-5, 124 N.M. 211, 947 P.2d 168 (finding sufficient evidence to support a conviction of DWI where the defendant was found unconscious or asleep at the wheel of his car in the front yard of his house with the car‘s engine running); Tafoya, 1997-NMCA-083, ¶¶ 2-5, 123 N.M. 665, 944 P.2d 894 (upholding a conviction of DWI where the defendant was in a parked vehicle that was inoperable, asleep at the wheel, with the key in the ignition, and the engine not running); Harrison, 115 N.M. at 74, 846 P.2d at 1083 (finding substantial evidence to support a DWI conviction where the defendant was discovered unconscious or asleep at the wheel of the automobile, with the engine on, even though the tires were blocked). We find that the clear purpose of the “actual physical control” element of the DWI statute is to deter persons from placing themselves in a situation in which they can directly commence operating a vehicle while they are intoxicated, regardless of the location of the vehicle. Cf. City of Cincinnati v. Kelley, 47 Ohio St. 2d 94, 351 N.E.2d 85, 86-87 (1976) (defining “actual physical control” as being physically capable of starting the engine and causing the vehicle to move).
{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, 115 N.M. at 76, 846 P.2d at 1085. We recognize that the threat might not be as great as it would be if the intoxicated person was actually driving the vehicle, but a substantial danger to the public still exists. The Court of Appeals in Harrison recognized this danger when it stated that “there is a legitimate inference to be drawn that [the defendant] placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away.” Id. (quoting Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975)). We do not believe, therefore, that the Legislature intended to limit the application of the element of actual physical control in the DWI statute to public highways.
{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, 115 N.M. at 76, 846 P.2d at 1085. We do not believe, therefore, that the underlying goal of protecting the public from intoxicated drivers is served by distinguishing between public highways and private property. Public safety is best advanced by deterring impaired persons from driving or placing themselves in a position of actual physical control of their vehicles in the first instance since such control frequently leads to movement of the vehicle, placing the community at risk of severe harm.
{23} Intoxicated drivers have options other than exerting actual physical control over their 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
{25} IT IS SO ORDERED.
SERNA, and MAES, JJ., concur;
MINZNER, C.J and FRANCHINI, J., (dissenting).
MINZNER, Chief Justice (dissenting)
{26} I respectfully dissent. I would affirm the formal opinion of the Court of Appeals in State v. Wenger, 1999-NMCA-092, 127 N.M. 625, 985 P.2d 1205, and the memorandum opinion of the Court of Appeals in State v. Johnson, No. 20,230, slip op. (NMCA Aug. 19, 1999). Affirming the Court of Appeals’ opinion would allow us to reconcile almost all of what has been written by an appellate court in this state on the issues the appeal
{27} The State has argued that under the Court of Appeals’ analysis,
{28} The majority concludes that the Court of Appeals erred in construing the “upon a highway” language of
Applying rules of grammar to
See Majority Opinion, ¶ 13. I respectfully disagree with this conclusion.
{29} We have previously explained that in construing statutes, “[R]elative 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., 110 N.M. 314, 318, 795 P.2d 1006, 1010 (1990) (quoted authority omitted). Applying this rule of statutory interpretation, known as the last antecedent rule, we held that under a statute requiring an automobile seller to disclose whether there has been an “alteration or chassis repair due to wreck damage,” the phrase “due to wreck damage” only modifies the immediately preceding phrase “chassis work.” Id. at 317, 795 P.2d at 1009.
{30}
“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
{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
{34} In addition, I have concerns about whether Boone was correctly decided.
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. 105 N.M. at 225, 731 P.2d at 368 (1986). In order to determine the contours of the term “drive” we looked to the Legislature‘s definition of “driver.” Id. at 226, 731 P.2d at 369. The Court decided that the term “drive” should apply coextensively with the term “driver,” and thereby included the conduct of a driver who was in actual physical control of a motor vehicle upon a highway.
{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, 112 N.M. 143, 146, 812 P.2d 797, 800 (Ct.App.1991).
{37} For these reasons, I would affirm.
FRANCHINI, J., concurs.