OPINION
{1} In this аppeal, we address whether Defendant, who was convicted of driving while intoxicated (DWI), was also properly convicted of child abuse by endangerment based upon the presence of a child in the moving vehicle that Defendant drove. We conclude that Defendant’s moving DWI alone, which he dоes not challenge on appeal, provided a sufficient factual basis for his child abuse by endangerment conviction, even if his DWI did not otherwise separately evince indicia of unsafe driving. Accordingly, we affirm Defendant’s conviction of child abuse by endangerment.
BACKGROUND
{2} The pertinent facts are not in disрute. Defendant was driving his vehicle, with his nine-year-old child in it, when he drove through an intersection without stopping at the stop sign and crashed into a ditch across the intersecting roadway. As a consequence, the vehicle’s air bags deployed, and his child suffered a “busted lip” and scratches on his face and сhest.
{3} An officer arrived at the accident scene at 6:09 p.m. and smelled alcohol on Defendant’s breath. Defendant told the officer that he was unable to stop at the intersection because his brakes failed. Although he had not completed his investigation, the officer let Defendant acсompany his child to the hospital in an ambulance. At the hospital, the officer continued to smell alcohol on Defendant, who admitted that he had consumed a six-pack of beer from noon to 3:00 p.m. that day. The officer then conducted field sobriety tests in the hospital parking garage, which Defendant performed in a manner consistent with impairment. The officer arrested Defendant for DWI and took him to jail where Defendant submitted to a chemical breath test. The test results showed Defendant’s blood alcohol content (BAC) to have been .16 and .17, more than double the level permissible under New Mexiсo Law. NMSA 1978, § 66-8-102(C)(l) (2010). At trial, Defendant was convicted of DWI and child abuse by endangerment.
ANALYSIS
{4} The DWI statute, Section 66-8-102(A), provides, “[i]t is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.” (Emphasis added.) “[Djriver” is defined as “every person who drives or is in actual physical control of a motоr vehicle[.]” NMSA 1978, § 66-1-4.4(K) (2007) (emphasis added). Our jurisprudence interprets this provision as establishing two ways a person may “drive” a vehicle: (1) DWI based on being in “actual physical control” of the vehicle while impaired, whether or not the vehicle is moving, and (2) DWI based on actually driving a moving vehicle while impaired. See State v. Sims,
{5} On appeal, Defendant does not challenge his DWI conviction. Instead, he contends that the State failed to present sufficient evidence to support his separate conviction for child abuse by endangerment. We review to determine “whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin,
{6} To convict Defendant of child abuse by endangerment, the State bore the burden to prove beyond a reasonable doubt that Defendant caused his child to be placed in a situation that endangered the child’s life or health, and that Defendant did so with “reckless disregard.” NMSA 1978, § 30-6-1(A)(3), (D)(1) (2009). Reckless disregard requires that Defendant “knew or should have known [his] conduct created a substantial and foreseeable risk, [he] disregarded that risk[,] and [he] was wholly indifferent to the consequences of [his] conduct and to the welfare and safety of [his child].” UJI14-604 NMRA.
{7} Defendant alleges that the State failed to show that he acted with reckless disregard for the welfare and safety of his сhild while he drove. Defendant maintains that his accident was caused by his vehicle’s unforeseeable brake failure
{8} Defendant’s argument is premised upon the erroneous presumption that there must be some sрecific indicia of driving in a perilous manner, or “plus factor” caused by his intoxication, that put his child passenger at risk to a degree greater than that occasioned by his DWI. As discussed more fully below, irrespective of what caused Defendant’s accident — bad brakes or impairment to his judgment or physical ability as a consequence of his intoxication — the relevant inquiry for the jury to resolve was whether Defendant, while intoxicated, drove a moving vehicle with his child as a passenger. We conclude that this circumstance alone, without more, is a sufficient basis upon which to support his child abuse by endаngerment conviction.
{9} In reaching this conclusion, State v. Chavez,
{10} In light of Chavez and the requirement that the risk of harm to a child be substantial and foreseeable, our case law holds that a conviction for child abuse by endangerment cannot be sustained when premised upon a DWI conviction that is based on the driver being in actual physical control of a non-moving vehicle with a child occupant. See State v. Etsitty,
{11} Unlike Etsitty and Cottоn, in which the actions of intoxicated drivers in physical control of non-moving vehicles presented a mere theoretical danger to their child passengers, Defendant undertook the non-theoretical peril of driving a moving vehicle, while intoxicated, with a child passenger. This significant distinction actualized the potential peril presented by our “physical control” cases. As emphasized by the State, beyond merely being a witness to or in proximity of a dangerous event, Defendant’s actions placed his child inescapably within a moving zone of danger. See Chavez,
{12} We recognize that most of our cases for child abuse by endangerment in the context of DWI based on actual driving occurred in circumstances which bore additional indicia of unsafe driving, or other “plus factors” that arose as the apparent consequence of the driver’s impairment. See, e.g., State v. Santillanes,
{13} For example, in State v. Chavez,
{14} Etsitty is аlso instructive within its holding that DWI by actual physical control of a non-moving vehicle does not support a child abuse by endangerment conviction based upon the merely theoretical danger posed to a potential child passenger.
{15} Implicit in this Court’s holdings in Chavez and Etsitty, although not expressly stated, is the conclusion that driving a moving vehicle while intoxicated in and of itself exposes a child passenger to a substantial risk of harm. And from a policy perspective, this conclusion makes sense. By analogy, our case law recognizes thе compelling public safety interest in deterring individuals from driving while intoxicated. See generally State v. Harrison,
{16} Lastly, apart from the merits, we note an apparent clerical error in the “judgment and order partially suspending sentence.” The judgment recites thatDefendant was convicted for DWI, contrary to Section 66-8-102(D)(1) (defining aggravated DWI as operating a motor vehicle with a BAC of at least .16). The jury instructions, however, addressed DWI pursuant to the portions of the statute which prohibit driving while impaired to the slightest degree or alternatively DWI based on driving with a BAC of .08 or more. To ensure accuracy with the verdict returned by the jury, we remand with instructions that the judgment be corrected to reflect the specific DWI for which Defendant was convicted.
CONCLUSION
{17} Based on the foregoing discussion, we affirm on the merits, and remand for correction of the judgment to accurately reflect the DWI crime of which Defendant was convicted.
{18} IT IS SO ORDERED.
WE CONCUR:
Notes
We note that while Defendant was charged with a stop sign violation, the district court ultimately granted a directed verdict in his favor as to that charge after considering defense counsel’s argument that Defendant failed to stop due to unexpected brake failure, rather than as a consequence of his intoxication. The State’s arguments below and on appeal thus are premised solely on its view that Defendant’s DWI alone supports his child abuse conviction.