{1} A police officer found Defendant passed out or asleep behind the wheel of his vehicle located in a commercial parking lot. The keys were on the front passenger seat of the vehicle. While awakening Defendant, the officer detected a strong odor of alcohol and observed that Defendant had bloodshot, watery eyes. Defendant admitted to drinking alcohol, failed field sobriety tests, and submitted to two breath tests, the results of
{2} Defendant moved to dismiss the charge, contending that he was not in actual physical control of the vehicle since the keys were not in the ignition. On these stipulated facts, the metropolitan court ruled at trial that Defendant was in actual physical control of the vehicle because if he roused himself, he could easily put the vehicle in motion. Defendant subsequently pled guilty to one count of driving while intoxicated, reserving the right to appeal the metropolitan court’s ruling that he was in actual physical control of his vehicle to the district court. On appeal, the district court affirmed the metropolitan court’s finding that Defendant was in actual physical control because he had possession of the keys and could have directly started the car. The district court’s ruling was then appealed to the Court of Appeals. A majority of the Court of Appeals, relying on State v. Johnson,
{3} We are persuaded that the concerns raised by the Court of Appeals warrant revisiting this Court’s interpretation of legislative intent regarding New Mexico’s DWI law. No motion of the vehicle is asserted in this case, either before or at the time the police officer approached Defendant. Had the police officer or other witnesses observed Defendant behind the steering wheel of a moving vehicle at or near the time of his apprehension, the State would not have to rely on “actual physical control” to prove that Defendant was DWI. It is only when there are no witnesses to the vehicle’s motion that actual physical control is essential to prove DWI at the time an accused is apprehended. Therefore, our interpretation strictly concerns the legislative intent of the phrase “actual physical control.” Mindful that the Legislature itself removed the phrase “actual physical control” from the DWI statute, and that the statute nonetheless relates to driving while intoxicated, we do not believe that the Legislature intended to forbid intoxicated individuals from merely entering their vehicles as passive occupants or using their vehicles for temporary shelter. The purpose of our DWI legislation is “to protect the health, safety, and welfare of the people of New Mexico” from “the risk of harm posed by intoxicated drivers.” Johnson,
{4} As will be explained in detail later in this opinion, a fact finder cannot simply assume or speculate that the individual in question might sometime in the future commence driving his or her vehicle. Instead, the fact finder must assess the totality of the circumstances and find that (1) the defendant was actually, not just potentially, exercising control over the vehicle, and (2) the defendant had the general intent to drive so as to pose a real danger to himself, herself, or the public. In this case, the State failed to prove that Defendant used the vehicle other than as a passive occupant. It was pure speculation whether Defendant would rouse himself and drive the vehicle. Defendant could not be convicted for what he might have done. The State had to prove beyond a reasonable doubt that Defendant actually exercised physical control over the vehicle with the general intent to drive so as to endanger the public. Having failed to meet its burden, the State did not establish actual physical control. Therefore, Defendant’s plea is set aside and the charge is dismissed.
{5} In December 2004, Defendant was charged in metropolitan court with one count of aggravated DWI, first offense, contrary to Section 66-8-102. Defendant entered into a conditional plea agreement after the metropolitan court judge found that Defendant could have put the vehicle in motion had he roused himself, and therefore was in actual physical control of the vehicle. On appeal to the district court, the dispositive issue was whether Defendant could have roused himself and “put the vehicle in motion and operated it with less than a safe and steady hand.” The district court affirmed the metropolitan court, finding that “[w]hether the car’s engine was running or not, whether the keys were in the ignition or not, whether [Defendant] was conscious or not, does not matter. [Defendant] had physical control of the car: he was in the driver’s seat and the keys were within his reach.” Therefore, the district court found that Defendant “could have directly started the car.”
{6} The Court of Appeals affirmed, holding that “the legislative intent behind Section 66-8-102 is best served by deterring an intoxicated person from putting himself behind the wheel of a car when he has immediate access to the ignition key of the vehicle.” Sims,
II. DISCUSSION
A. DWI Statute and Jurisprudence
{7} The New Mexico Motor Vehicle Code provides that “[i]t is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.” Section 66-8-102(A). Prior to 1953, the Legislature had limited the statutory proscription to driving a vehicle while under the influence, which is similar to the way the statute now reads. NMSA 1941, § 68-502 (1929, prior to 1953 amendment). In 1953, however, the Legislature changed the wording to make it unlawful “for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this State.” 1953 N.M. Laws, eh. 139, § 54 (emphasis added). At the same time, the Legislature statutorily defined “driver” for the first time to mean “[e]very person who drives or is in actual physical control of a vehicle.” 1953 N.M. Laws, ch. 139, § 11 (emphasis added). After these amendments, the substantive statute and the definition remained unchanged until 1978.
{8} In 1978, the Legislature amended the definition of “driver,” changing “vehicle” to “motor vehicle” and appending the phrase “including a motor-driven cycle, upon a highway or who is exercising control over, or steering, a vehicle being towed by a motor vehicle.” 1978 N.M. Laws, ch. 35, § 4(17) (codified as amended at NMSA 1978, § 66 — 1— 4.4(k) (1990, as amended through 2007)). The Legislature did not make similar changes to any other sections of the Motor Vehicle Code.
{9} In 1979, the Legislature struck the “actual physical control” language from each of the substantive Motor Vehicle Code sections relating to DWI, but retained it in the “driver” definition. See 1979 N.M. Laws, eh. 71, §§ 1, 7, 8, 11 (retaining “actual physical control” in Section 66-l^L4(K) and deleting
{10} In 1986, however, this Court interpreted these cumulative changes to convey the Legislature’s intent not to sever the “driver” definition from the substantive DWI section, or as a substantive change to return to the language of the pre-1953 provision, but to “streamline and clarify” the Motor Vehicle Code. Boone v. State,
In 1978, the Motor Vehicle Code was rewritten substantially, and the definition of “driver” was amended to encompass “every person who drives or is in actual physical control of a motor vehicle ... or who is exercising control over, or steering, a vehicle being towed by a motor vehicle.” The new definition was inconsistent with the unchanged DWI section in its references to motor vehicles but not in its use of the phrase “drives or is in actual physical control of.”
Id. at 225,
{11} The Boone Court determined that the Legislature intended that the definition of “driver” and the DWI section must be consistent, and that the Legislature had two options in 1979 to reconcile them as a result of the 1978 changes. “The Legislature could have conformed Section 66-8-102 to the definition by adding the appropriate references to motor vehicles and towed vehicles. Instead it chose to streamline and clarify the DWI section by using only the statutorily defined term, ‘drives.’ ” Id. The Boone Court, as Chief Justice Minzner noted in her dissent in Johnson, applied the definition of the term “drives” coextensively with the term “driver,” because the Motor Vehicle Code does not actually define the term “drives.”
{12} Using this method of construction, the Boone Court determined that the amendments to the DWI section and the Motor Vehicle Code intended
to make clear that the Legislature’s definition of “driver” applies to the offense of DWI. We therefore hold that Section 66-8-102 makes it unlawful for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of a motor vehicle or to exercise control over or steer a vehicle being towedby a motor vehicle; motion of the vehicle is not a necessary element of the offense.
Id. at 226,
B. Boone Was Intended to Allow Prosecution for Past DWI, but It Has Been Misinterpreted to Allow Prosecution for Future DWI
{13} It is important to understand that the Boone Court’s rationale went beyond merely seeking to reconcile the “driver” definition with an ambiguous DWI provision. Rather, the driving force behind this Court’s holding in Boone was a disinclination to alter the common law rule prohibiting warrantless misdemeanor arrests when the misdemeanor does not occur in the presence of the arresting officer.
{14} Boone presented the problem of an obviously intoxicated individual in a vehicle that was not moving at the time the arresting officer arrived at the scene. The defendant’s car was stopped with its lights off and the engine running in the middle of the street. Id. at 224,
{15} The impediment for the trial court was the common law rule that a police officer cannot make a valid warrantless arrest for a misdemeanor driving while under the influence charge when the officer did not himself see the vehicle in motion. See id. at 1; see also State v. Luna,
{16} This Court, however, determined that the Court of Appeals erred by assuming that motion of a vehicle is required to violate the DWI statute and by expanding the “meaning of the requirement that the offense be committed ‘in the presence of the officer[, which was] unnecessary to the determination of this case[.]” Boone,
{17} Boone’s purpose, therefore, was to create a judicial mechanism for prosecuting intoxicated drivers who had obviously been driving but no longer had the car in motion when in a police officer’s presence. In other words, Boone used actual physical control to allow for a conviction of past DWI based on the continued control of the vehicle at the time of a police officer’s arrival on the scene. However, the use of “actual physical control” by this Court in Boone has been interpreted to support the prosecution of an intoxicated person for DWI because he or she might drive in the future while still intoxicated. It is this latter interpretation that concerns us in this case.
{18} The facts of this case implicate only the latter interpretation of actual physical control, which has been developed in subsequent decisions by this Court and the Court of Appeals, culminating in the expansive definition applied by the lower courts in this case. We now review those prior decisions to understand their holdings in light of Boone so that we can ensure our jurisprudence continues to adhere to legislative intent.
C. Development of Actual Physical Control After Boone
{19} Following Boone, this Court did not address “actual physical control” again until Johnson,
{20} We stated that “a person is in actual physical control over a vehicle when he or she exercises direct influence over the vehicle.” Id. “[T]he 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.” Id. In discussing actual physical control, we strayed into dicta by addressing
{21} In reaching our decision in Johnson, we relied on a series of Court of Appeals opinions developing this nascent jurisprudence stemming directly from Boone, most important among them being State v. Harrison,
{22} Based on these facts, the Court of Appeals held that “[i]t can reasonably be inferred that Defendant actively searched for the vehicle keys, started the engine, and was prepared to drive away before he passed out or fell asleep.” Harrison,
{23} The Harrison Court further held that under Boone, “[t]he fact that the officers discovered no signs that the vehicle had been moved by Defendant is irrelevant.” Harrison,
D. Actual Physical Control Requires Proof of a General Intent to Drive
{24} We agree with Harrison and reaffirm that the DWI provision proscribing driving while intoxicated is a strict liability crime and requires no mens rea for conviction when the accused, while intoxicated, is observed behind the steering wheel of a moving vehicle. However, the facts of this case persuade us that when a DWI charge is based on evidence of “actual physical control,” evidence of intent is also necessary to support a conviction. The threat, if any, that was posed by Defendant as he lay passed out or asleep in his vehicle was far short of that posed by an intoxicated individual who is driving. While Defendant arguably exercised some level of control over the vehicle, given his location in the driver’s seat and the proximity of his keys, there was no indication that he posed any actual, as opposed to hypothetical, threat to the public.
{25} In fact, an intoxicated individual may exercise a great deal of control over a vehicle, yet still pose little danger to himself, herself, or the public. For example, on a cold night, an intoxicated person may use his vehicle as a temporary shelter — as a place to sleep it off — even going so far as to start the engine so that he can turn on the heater. Such an individual, while clearly in control of his vehicle, does not pose a threat to himself, herself, or the public precisely because he has decided not to drive. The individual’s recognition that he is too intoxicated to drive embodies the aim of our DWI law and its enforcement. To subject this type of behavior to strict liability would be counterproductive.
{26} It is not until an intoxicated individual in actual physical control of a vehicle forms the intent to drive that he becomes a danger. At that moment he ceases to be merely a passive occupant of the vehicle — he becomes a threat to public safety and is therefore culpable under the DWI law. We therefore hold that a DWI conviction that is based on actual physical control requires proof that the accused actually exercised control over the vehicle, as well as proof of a general intent to drive, so as to pose a real danger to the safety of the driver or the public.
3
It is no longer sufficient to introduce evidence that shows that the accused “can directly commence operating a vehicle while ... intoxicated.” Johnson,
{27} We recognize that interpreting actual physical control to require proof of intent makes it analytically similar to an attempt crime. See NMSA 1978, § 30-28-1 (1963) (requiring “an overt act in furtherance of and with intent to commit” the crime); cf. Johnson,
E. Policy and Legislative Intent Support Limiting Boone and Johnson
{28} At the time the New Mexico Supreme Court filed its opinion in Boone, overruling the Court of Appeals by a narrow 3-2 margin, its holding was recognized as problematic. Justice Walters wrote a dissent, arguing that the “majority opinion goes too far.” Boone,
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.”
Id. (citation omitted). Similarly, the Court of Appeals, in deciding this very case, voiced concern over Johnson’s broad language that is rooted in Boone: ‘Were we to analyze this case on a clean slate, we would reverse based on the reasoning set forth in the dissent written by Justice Minzner in Johnson.” Sims,
{29} While we agree that elements of Boone and Johnson go too far, we adhere to our understanding that “[t]he purpose of our DWI legislation is to protect the public from the risk of harm posed by intoxicated drivers},]” Johnson,
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. ¶ 17 (citation omitted). As we confirmed in Johnson, “the legislature recognized this significant public interest and potential harm when it drafted Section 66-8-102” and made “the act of driving while intoxicated a crime, in and of itself, regardless of the intent of the accused.” Harrison,
{30} In Johnson, we held 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[.]”
{31} Consequently, we agree that the dicta in Johnson identifying the purpose of actual physical control as “deterfring] persons from placing themselves in a situation in which they can directly commence operating a vehicle while they are intoxicated” was overly broad.
{32} To the extent that our prior decisions in Johnson and Boone conflict with our holding today, we limit those holdings in accord with this opinion. While we recognize that the statutory construction employed in Boone remains questionable, we note that since Boone was decided, at least two other jurisdictions have adopted an identical approach with their respective DWI legislation, incorporating “actual physical control” from the statutory definition for “driver” into the substantive provision delimiting “drive.” That other jurisdictions with similar DWI provisions have relied on the same logic and approach as this Court buttresses the essential holding and rationale employed in Boone.
F. Proving Actual Physical Control
{33} In reviewing approaches taken by other jurisdictions with respect to establishing actual physical control of a vehicle, we find portions of the recently recommended Arizona jury instruction particularly helpful and persuasive. Arizona’s recommended instruction directs jurors to consider “the totality of the circumstances shown by the evidence” and suggests a list of non-exhaustive factors that can be employed to determine whether a defendant had actual physical control and posed a real danger to himself or others. State v. Zaragoza,
1. Whether the vehicle was running;
2. Whether the ignition was on;
3. Where the ignition key was located;
4. Where and in what position the driver was found in the vehicle;
5. Whether the person was awake or asleep;
6. Whether the vehicle’s headlights were on;
7. Where the vehicle was stopped;
8. Whether the driver had voluntarily pulled off the road;
9. Time of day;
10. Weather conditions;
11. Whether the heater or air conditioner was on;
12. Whether the windows were up or down;
13. Any explanation of the circumstances shown by the evidence.
Id.; see also Revised Arizona Jury Instruction (“RAJI”) (Standard Criminal) 28.1381(A)(1)(DUI) (3d ed. 2008). Arizona also instructs jurors that “[i]t is up to [them] to examine all the available evidence in its totality and weigh its credibility in determining whether the defendant was simply using the vehicle as a stationery [sic] shelter[.]” Zaragoza,
{34} The clarification of our actual physical control jurisprudence that we introduce today is supported by the rationale and public policy underlying New Mexico’s DWI law and legislative intent, which is to prevent people from driving while intoxicated and endangering themselves or the public. The prosecution must establish, based on the totality of the circumstances, that the accused was actually, not just potentially, exercising control over the vehicle with the general intent to drive so as to pose a real danger to himself, herself, or the public. If the Legislature intends otherwise, it is free to amend the statute to make clear its purpose.
{35} To understand how these factors might be applied to determine whether a driver is in actual physical control of a vehicle and has the general intent to drive so as to endanger the public, we review some precedent cases. The facts from Harrison implicate numerous factors in the analysis — the key was in the ignition, the ignition was on, and the driver was sitting behind the wheel of the vehicle in a traffic lane while he applied the brakes, thus demonstrating actual control of the vehicle.
{36} In State v. Rivera,
{37} The facts of the consolidated cases we reviewed in Johnson also pose some challenges under the more demanding totality
{38} It is evident from a brief review of these cases that the totality of the circumstances test we adopt today increases the evidentiary burden on the State relative to the dicta in Johnson. See id. ¶ 19 (stating that the purpose of 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”). More care will be required of investigating officers and prosecutors to establish facts tending to prove that defendants actually used their vehicles with the general intent to drive and posed a real danger to themselves or the public. Facts that suggest what the defendants might do or the ease with which the defendants could commence driving are now insufficient to establish actual physical control. A totality of the circumstances test must prove what defendants have done and what they intend to do, not merely what they might do. A finding that “there [is] nothing to prevent [the defendant from ... driving” is now inadequate. Sims,
III. CONCLUSION
{39} For the foregoing reasons, we reverse the Court of Appeals, set aside Defendant’s plea, and dismiss the charges.
{40} IT IS SO ORDERED.
Notes
. The Pennsylvania court was careful to limit "actual physical control” in a way that Boone did not by stating that "[a] driver has 'actual physical control’ of his car when he has real (not hypothetical), bodily restraining or directing influence over, or domination and regulation of, its movements of machinery.” Commonwealth v. Kloch,
. The Boone Court's importation of the "driver” definition and its other terms into the substantive DWI sections created several inconsistencies. Already litigated and decided by this Court in Johnson is the geographical distinction between public and private land seemingly created by the definition’s phrase "upon a highway.” Johnson,
. "New Mexico courts have ... allow[ed] voluntary intoxication as a consideration only for specific-intent crimes!.] Under this approach, evidence of voluntary intoxication is not admissible for what are referred to as general-intent crimes.” State v. Brown,