State v. RegerState v. Reger
{1} Defendant Mark Reger appeals his convictions for aggravated driving while under the influence of intoxicating liquor (DWI), and driving while license suspended or revoked. The factual setting of Defendant’s case requires us to consider whether a police officer may properly arrest an intoxicated driver standing outside his vehicle when the officer has not observed him driving. We conclude that the misdemeanor arrest rule is satisfied where the officer may reasonably infer from the direct and circumstantial evidence that the driver is intoxicated and has recently been in actual physical control of the vehicle. We affirm the district court.
BACKGROUND
{2} Defendant’s motion to suppress evidence resulting from his arrest adopted the facts as reported by the arresting officer, Sergeant Ricardo Huerta of the Artesia police department. At the hearing on the motion, both Defendant and the State stipulated to Sergeant Huerta’s testimony. Thus, the following facts are not in dispute. On August 23, 2007, Sergeant Huerta responded to a report of a possible drunk driver who had parked his truck on private property at an auto dealership in Artesia, New Mexico. Arriving at the location, Sergeant Huerta encountered Defendant standing outside of his truck, which was parked with the hood open and the engine off. Defendant told the officer he had stopped because someone had told him one of his lights was out. The officer noticed that Defendant was slurring his speech, was unsteady on his feet, and had an odor of alcohol on his breath. The officer administered field sobriety tests and based on his observations placed Defendant under arrest for DWI.
{3} Defendant ultimately pleaded guilty 1 to aggravated DWI and driving while license suspended or revoked, reserving the right to appeal the district court’s denial of his motion to suppress evidence resulting from his arrest.
STANDARD OF REVIEW
{4} “In reviewing a trial court’s denial of a motion to suppress, we observe the distinction between factual determinations which are subject to a substantial evidence standard of review and application of law to the facts, which is subject to de novo review.” State v. Nieto,
DISCUSSION
{5} Defendant argues that his arrest for DWI was improper because he was not in “actual physical control” of his truck when Sergeant Huerta encountered him, nor had Sergeant Huerta observed him driving. New Mexico statutes provide that “[i]t is
{6} “What constitutes actual physical control has been decided based on the facts of a particular case.” State v. Sims,
{7} Our language in Sims suggests that the factual setting of that case approaches the outer limits of circumstances that may be considered actual physical control. Addressing the dissent, this Court prefaced its comments by stating: “Although we have concerns with conduct of this nature rising to the level of DWI ....” Sims,
{8} Without purporting to draw a bright line, we conclude for several reasons that in the circumstances of the present case Defendant was not in actual physical control of his vehicle at the time Sergeant Huerta encountered him. A person standing outside a vehicle with the hood up is not “in a situation in which they can directly commence operating a vehicle,” nor is the person “exereis[ing] direct influence over the vehicle.” Johnson,
{9} New Mexico eases discuss the concept of actual physical control in terms of ability to “directly commence operating a vehicle,” not having driven the vehicle in the recent past. Id. Thus, the question of whether a
{10} The State cites several cases affirming convictions where the intoxicated driver was encountered outside his vehicle, and the investigating officer did not observe any driving. Three of these cases tend to blur the distinction between current actual physical control and circumstantial evidence that the person had been driving earlier. As discussed below, failure to make a distinction between these two concepts raises a question as to whether the misdemeanor arrest rule has been violated. In Azbill v. State,
{11} In In re Welfare of R.A.D.,
{12} In State v. Stevens,
{13} In New Mexico, the question of whether circumstantial evidence of driving is sufficient where the officer has not observed the intoxicated driver in actual physical control of the vehicle implicates the misdemeanor arrest rule. The rule provides that “[generally, in New Mexico, an officer may execute a warrantless misdemeanor arrest only if the offense was committed in the officer’s presence.” City of Las Cruces v. Sanchez,
A. Members of the New Mexico state police, sheriffs and their salaried deputiesand members of any municipal police force, may arrest without warrant any person:
(1) present at the scene of a motor vehicle accident;
(2) on a highway when charged with theft of a motor vehicle; or
(3) charged with crime in another jurisdiction, upon receipt of a message giving the name or a reasonably accurate description of the person wanted, the crime alleged and a statement he is likely to flee the jurisdiction of the state.
B. To arrest without warrant, the arresting officer must have reasonable grounds, based on personal investigation which may include information from eyewitnesses, to believe the person arrested has committed a crime.
NMSA1978, § 66-8-125 (1978).
{14} Our Supreme Court has at least implied that an officer may make an arrest based on the surrounding circumstances even though he has not seen the person driving. In State v. Gomez,
{15} The facts of State v. Greyeyes,
[The defendant was in possession of his vehicle, admitted that he was the owner, had been drinking, and had driven the vehicle into the railing. These facts, coupled with the additional facts that defendant smelled of alcohol and failed field sobriety tests administered by the officer, were sufficient to make defendant’s arrest valid.
Id. We stated, “[although it is uncontested ... that [the officer] did not personally see the defendant drink alcohol or actually operate his pickup truck, nevertheless, the ‘in presence’ requirement was satisfied here.” Id. at 551-52,
{16} We conclude that the Greyeyes analysis is appropriate in cases such as the present one where an intoxicated person is encountered outside a vehicle. In these circumstances, the officer’s personal perceptions include observation of the circumstances surrounding the presence of the defendant and the vehicle, observation and smells evidencing the defendant’s intoxication, and hearing what the defendant and others say. What the officer perceives supplies
{17} We see no point in ignoring the obvious in cases where overly technical application of the misdemeanor arrest rule could supply a tiny crack for the case to fall into. We note, for example, that disallowing a warrantless arrest under the present circumstances could potentially place a burden on the officer to monitor the intoxicated person for the next several hours to ensure that he does not drive away while in that condition.
{18} Applying the above principles, we first decline to extend the meaning of “actual physical control” to include the circumstances in which the officer encountered Defendant. Defendant was, however, in possession of his truck and acknowledged that he had parked it — i.e., driven it and brought it to a stop — to check if a light was out. He showed signs of being under the influence of alcohol and admitted drinking. We conclude that these circumstances satisfied the requirement that the offense be committed in the officer’s presence.
CONCLUSION
{19} Although Defendant was not in actual physical control of his truck when Sergeant Huerta encountered him, the facts and circumstances occurring within the officer’s observation at the time of Defendant’s arrest satisfied the misdemeanor arrest rule and provided probable cause. The district court properly denied Defendant’s motion to suppress evidence resulting from his arrest. We therefore affirm Defendant’s convictions.
{20} IT IS SO ORDERED.
Notes
. The judgment and sentence states that Defendant pleaded guilty, but the district court’s approval of plea proceeding, the clerk's minutes of the plea and sentence hearing, and the docketing statement state that he pleaded no contest.