State v. SimsState v. Sims
Lead Opinion
OPINION
{1} Defendant appeals his conviction for driving while intoxicated (DWI) under NMSA 1978, § 66-8-102 (2005) (amended 2007). The issue in this case is whether Defendant had actual physical control of his vehicle when he was discovered asleep or passed out at the wheel with the ignition key on the passenger seat. Because the location of the ignition key on the passenger seat would allow the person sitting in the driver’s seat to start the automobile and drive away at any time, we hold that the Defendant had actual physical control of the vehicle. Accordingly, we affirm Defendant’s conviction.
I. BACKGROUND
{2} Defendant was charged with one count of DWI. The parties stipulated the following facts. The аrresting officer found Defendant passed out or asleep behind the wheel of a vehicle, which was parked in a commercial parking lot. The engine was not running, and the officer could see keys in plain view on the passenger seat. The officer discerned a strong odor of alcohol and noticed Defendant’s bloodshot, watery eyes and slurred speech. Defendant admitted to having had three drinks, and he performed poorly on field sobriety tests.
{3} The metropolitan court (metro court) ruled that Defendant had actual physical control of the vehicle because he could have easily started and driven the car under the circumstances stipulated by the parties. Defendant then entered a conditional plea of guilty to the DWI charge and reserved his right to appeal the metro court’s ruling.
{4} After considering Defendant’s appeal, the district court affirmed the judgment of the metro court. The district court essentially agreed with the metro court’s assessment: because the ignition key was accessible to Defendant, he was physically capable of starting the car; therefore, Defendant had actual physical control of the vehicle. Defendant appeals the district court’s judgment.
II. DISCUSSION
{5} The statute under which Defendant was charged is Section 66-8-102, which states, “It is unlawful for a person who is under thе influence of intoxicating liquor to drive a vehicle within this state.” Section 66-8-102(A). Relying on the definition of “driver” as contained in the Motor Vehicle Code, the New Mexico Supreme court interpreted the term “driver” to include not only those who are actually driving a motor vehicle but also anyone who is in “actual physical control” оf the vehicle. NMSA1978, § 66-1-4.4(K) (1999) (amended 2007); Boone v. State,
{6} Defendant makes two arguments to support the theory thаt he was not in actual physical control of his car. First, Defendant asserts that New Mexico law has required that the key be found in the ignition in order to establish the driver’s actual physical control of the vehicle. We disagree.
{7} What constitutes actual physical control has been decided based on the facts of a partiсular case. See, e.g., State v. Johnson,
{8} We examine the plain meaning of Section 66-8-102 in the context of the intent of the legislature. Johnson,
{9} In our case, the ignition key was on the passenger seat next to Defendant, who was asleep or passed out in the driver’s seat. Under settled law, Defendant had actual physical control if he could exercise direct influence over the vehicle. Id. ¶ 19. There is no evidence regarding how Defendant’s vehicle came to be in the commercial parking lot. The only issue before us relates to Defendant’s ability to drive away from that lot. Based on the facts of this case, there was nothing to prevent Defendant from awakening, reaching for the keys, and driving from the parking lot. The policy behind Section 66-8-102, as statеd in Johnson, is to prevent this type of risk to the public because intoxicated persons are “unable to exercise the clear judgment and steady hand necessary to handle a vehicle with safety both to themselves and the public.”
{10} Second, Defendant contends that the location of the ignition key in the passenger seat indicated that Defendant decided not to drive the vehicle and that a determination of actual physical control would thus be contrary to the legislative intent of Section 66-8-102. Again, we disagree. Our Supreme Court, in Johnson, explained that “[pjublic safety is best advanced by deterring impaired persons from driving or placing themselves in a рosition of actual physical control of their vehicles in the first instancel}] since such control frequently leads to movement of the vehicle.”
{11} We now address the dissent. Although we have concerns with conduct of this nature rising to the level of DWI, we cannot agree with the reasoning of the dissent. Once our Supreme Court decided that the test is actual physical сontrol and that the test is satisfied by a person passed out in the driver’s seat with the key in the ignition, then it seems to us that establishing a dividing line at that point or millimeters away is not supported by any coherent rationale, other than a desire to draw a line somewhere. The dissent supports its line by hypothetical situations of persons asleep in the backseat or outside the car. According to the dissent’s line, a fully conscious person with the key in his hand just a few feet from the ignition and about to start the car would fall outside the Johnson rule, as would Defendant in this case, with the keys on the seat beside him. The test cannot be one of consciousness, since the defendants in casеs Johnson relied on were passed out. See Johnson,
{12} We now turn to our concern with Johnson. Were we to analyze this case on a clean slate, we would reverse based on the reasoning set forth in our opinion in State v. Wenger,
III. CONCLUSION
{13} We agree with the district court’s holding that Defendant had actual physical control of the vehicle in these circumstances. Defendant’s conviction is affirmed.
{14} IT IS SO ORDERED.
Dissenting Opinion
(dissenting).
{15} I respectfully dissent. I respectfully suggest that the Supreme Court take another look at Stаte v. Johnson,
{16} A “ ‘driver’ ” is a “person who drives” or is “in actual physical control of a motor vehicle.” NMSA 1978, § 66-l-4.4(K) (1999) (amended 2007); Johnson,
{17} In support of its determination that a violation of the DWI statute can occur on private property, as well as public property, our Supreme Court in Johnson stated that the purpose of the words “‘actual physical control’ ” 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 lоcation of the vehicle.” Id. ¶ 19. The Court reinstated the charges of DWI based on that deterrence policy and on the further determination that a person in actual physical control of a vehicle is a danger to society because of the potential that the person could drive the vehicle. See id. ¶¶ 17, 19, 24.
{18} The Johnsоn Court defined the statutory words, “ ‘actual physical control,’ ” by a driver to mean a person who “exercises direct influence over the vehicle.” Id. ¶ 19. The Court did not define what “exercises direct influence” means. “Direct,” among other things, means “proceeding from one point to another in time or space without deviation or interruption,” and “proceeding by the shortest way.” Webster’s New Collegiate Dictionary 323 (1975); see Webster’s II New College Dictionary 321 (1995) (defining “direct” to mean “[t]o take authoritative charge of’). “Influence” means “the act or power of producing an effect without apparent exertion of force or direct exercisе of command.” Webster’s New Collegiate Dictionary 592; see Webster’s II New College Dictionary 569 (1995) (defining “influence” as “[a] power indirectly or intangibly affecting a person or event”). I question whether the reader’s understanding of “actual physical control” is enhanced by the definition “exercises direct influence.” Ambiguity sets in, given that “direct” seems to connote producing an effect with “exertion of force or direct exercise of command,” while “influence” connotes the opposite.
{19} The driver in Johnson who was sitting in the driver’s seat with the key in the ignition and engine running can arguably be characterized as a person who was in actual physical control of the vеhicle, despite the fact that the vehicle was not moving at the time. That driver could have directly and immediately driven the vehicle. The driver who was sitting in the driver’s seat with the key in the ignition but without the engine running could also arguably be characterized as a person who was in actual physical control of the vehicle. That driver could directly and immediately, with the key already in place, have turned the engine on and have driven the vehicle. I interpret the Johnson Court’s definition of a person who “exercises direct influence” to mean a person who is in a position to get the vehicle running and moving almost instantly. If that is not how “exercises direct influence” is to be dеfined, then that is how it should be defined. Still, even with this more appropriate way of looking at “actual physical control,” it does not answer the question of where to stop incremental broadening of the language in the DWI statute.
{20} While Johnson’s general policy statements can, arguably, support the conclusion that Defendant in the present case is properly charged with DWI, I think Johnson’s application should be limited. At this point, any extension beyond circumstances where a person is in a position, directly and immediately, to get the vehicle running and moving, should be the subject of legislation, not judicial extension.
{21} Courts are often loathe to discuss hypotheticals. We handle cases on their peculiar and particular facts, governed by fairly broad legal principles. But here, the present case, with Johnson as its “precedent,” appears to me to create nigh onto a circumstance akin to strict liability for any intoxicated person who is in a position, within a reasonаbly short space and time, to put the key in the ignition of a vehicle. I see little difference between Defendant’s circumstance and that of a person who is asleep in the backseat of a vehicle with the key in his or her pocket. I see little difference between Defendant and a person outside the vehicle with thе key in his or her pocket, even if the person is sitting in another’s vehicle close by, is passed out on the ground next to his or her own vehicle, or has just left a restaurant or private home and is heading for a vehicle with the key in his or her pocket or hand. I see little difference between Defendant and an intoxicated person who remains in a vehicle and is given possession of the key while his or her spouse, who was driving the vehicle, is required to walk a block to get gas because their vehicle has run out of gas.
{22} Johnson’s policy statements relating to deterrence and danger are based on potentiality, not actuality. There are a myriad of circumstаnces in which an intoxicated person is potentially able, to use Johnson’s language, to “exercise direct influence” over a vehicle such that the person can get the vehicle running and moving. I tend to doubt that the Legislature had in mind convictions under all of the circumstances. We should not overlook the fact that the Legislаture used the words “actual physical control.” The word “actual” means “existing in act and not merely potentially.” Webster’s New Collegiate Dictionary 12 (1975); see Webster’s II New College Dictionary 12 (1995) (defining “actual” as “[e]xisting in fact or reality” and “[e]xisting or acting at the present moment”). One source sets out “existent-contrasted with potential and possible” as a synonymous cross-reference to “actual.” Webster’s Third New International Dictionary 22 (1976). “Actual” arguably covers sitting in the driver’s seat with the key in the ignition. But I have difficulty seeing how it covers passed out or asleep in the front seat with the key on the passenger’s seat, or how it covers sitting, passed out, or asleep in thе passenger’s seat. Almost anything but a person in the driver’s seat with the key in the ignition or in the process of placing the key in the ignition is a potential, not actual, act of “physical control.”
{23} Without legislative amendment to the DWI statute, we should not extend criminal liability to the facts in the present case. Where the vehicle is on privаte property, and no evidence is presented sufficient to prove that the person charged was driving the vehicle while intoxicated, criminal liability under the present DWI statute should be limited to instances in which the defendant is in a position, directly and immediately, to instantly get the vehicle running and moving. If criminal liability is to be extended beyond those circumstances, I think the Legislature ought to have the first crack at broadening the coverage of the crime.