State v. Sims

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-027

Filing Date: June 8, 2010

Docket No. 30,827

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

MARK SIMS,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Neil C. Candelaria, District Judge

Albright Law & Consulting
Jennifer Rebecca Albright
Albuquerque, NM

for Petitioner

Gary K. King, Attorney General
Ralph E. Trujillo, Assistant Attorney General
Santa Fe, NM

for Respondent

OPINION

CHÁVEZ, Justice.

{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 which
were .19 and .18 respectively. Defendant was charged with driving while intoxicated (DWI),
contrary to NMSA 1978, Section 66-8-102 (1953, as amended through 2004).

{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, 2001-NMSC-
001, ¶¶ 1, 19, 130 N.M. 6, 15 P.3d 1233 (filed in 2000), affirmed the district court’s finding
that Defendant was in actual physical control because “there was nothing to prevent
Defendant from awakening, reaching for the keys, and driving from the parking lot.” State
v. Sims, 2008-NMCA-017, ¶ 9, 143 N.M. 400, 176 P.3d 1132. The dissent would have
reversed the trial court because “actual” physical control should require more than potential
or possible physical control and any expansion of the law should be for the Legislature to
enact. Id. ¶¶ 20-22 (Sutin, C.J., dissenting). In any event, both the majority and the
dissenting judges urged this Court to reconsider Johnson. Sims, 2008-NMCA-017, ¶¶ 12,
15.

{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, 2001-NMSC-001, ¶¶ 6, 17
(emphasis added).

{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.

I. BACKGROUND

{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,
2008-NMCA-017, ¶ 10. The Court of Appeals relied primarily on our discussion in Johnson
concerning the legislative purpose behind Section 66-8-102, which is to “deter persons from
placing themselves in a situation in which they can directly commence operating a vehicle
while they are intoxicated.” Sims, 2008-NMCA-017, ¶ 8 (internal quotation marks and
citation omitted). The Court also stated that no “coherent rationale” could distinguish
between circumstances where the keys are in the ignition or “millimeters away” on the seat.
Id. ¶ 11. However, the Court of Appeals majority opinion expressed concern with Johnson
and urged this Court to “take another look at what constitutes driving while intoxicated.”
Id. ¶ 12. In particular, the Court of Appeals expressed “concerns [that] conduct of this
nature ris[es] to the level of DWI[.]” Id. ¶ 11. The dissent also urged this Court to
reconsider our holding in Johnson and to reverse Defendant’s conviction. Id. ¶ 15 (Sutin,
C.J., dissenting). We granted Defendant’s petition for writ of certiorari, State v. Sims, 2008-
NMCERT-001, 143 N.M. 399, 176 P.3d 1131, and reverse.

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

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intoxicating liquor to drive or be in actual physical control of any vehicle within this State.”
1953 N.M. Laws, ch. 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, ch. 71, §§ 1, 7, 8, 11 (retaining “actual physical control”
in Section 66-1-4.4(K) and deleting the phrase from Sections 66-8-102, -107, and -112,
respectively). The term “driver” appears in numerous locations throughout the Motor
Vehicle Code and the definition applies universally. See NMSA 1978, § 66-1-4 (1978, as
amended through 1991) (stating that the definition sections “define terms for general
purposes of the Motor Vehicle Code”). As a result of these changes, the Legislature made
the substantive DWI provision inconsistent with the “driver” definition in two ways: (1) the
DWI section referred to “vehicle” rather than “motor vehicle”; and (2) it no longer used
“actual physical control,” whereas the “driver” definition still did. One possible
interpretation of this across-the-board omission from the substantive provisions is that the
Legislature intended to return to the pre-1953 DWI provision when “actual physical control”
was not an element of the DWI crime and only driving while intoxicated was proscribed.

{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, 105 N.M. 223, 225, 731
P.2d 366, 368 (1986). Finding as a matter of law that the term “drive” was “unclear,” the
Boone Court turned to statutory construction to resolve the ambiguity. Id. Rather than
interpret the 1979 omission of “or be in actual physical control of” from the DWI section as
evidence that the Legislature intended to narrow the scope of the statutory offense, this Court
found that the intent was to make the DWI section consistent with the Motor Vehicle Code’s
recently revised definition of “driver.” Id. at 225-26, 731 P.2d at 368-69.

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

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 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, 731 P.2d at 368 (citation omitted).

{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.” 2001-NMSC-001, ¶¶ 34-36 (Minzner, C.J., and Franchini, J.,
dissenting). The Boone majority cited a Pennsylvania case, Commonwealth v. Kloch, 327
A.2d 375, 383 (Pa. Super. Ct. 1974) (using “operator” and “operation” to apply to verb
“operate”)), for the interpretive approach equating “drive” with “driver.”1 Boone, 105 N.M.
at 225, 731 P.2d at 368.

{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 towed by a motor vehicle; motion of the vehicle is not
a necessary element of the offense.

Id. at 226, 731 P.2d at 369. According to this interpretation, the Legislature’s purpose was
to keep the “actual physical control” language in the substantive DWI provisions, because
the “driver” definition was meant to apply to every substantive provision using the word
“drive.” Therefore, it was unnecessary for the Legislature to restate in every relevant DWI
provision “or be in actual physical control” because the phrase was automatically

1
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, 327 A.2d 375, 383
(Pa. Super. Ct. 1974) (citation omitted) (emphasis added).

4
incorporated by reference to the “driver” definition.2

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. 105 N.M. at 226, 731 P.2d at 369.

{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,
731 P.2d at 367. The investigating officer noted that the defendant, who was sitting in the
driver’s seat, smelled of alcohol, slurred his speech, walked unsteadily, and failed all but one
of the field sobriety tests administered. State v. Boone, No. 8093, slip op. at 1-2 (N.M. Ct.
App. Sept. 12, 1985). The trial court found that Section 66-8-102 “requires that the vehicle
be placed in motion,” and therefore that the arresting officer “had no probable cause to
believe that the offense of driving while under the influence was being committed in his
presence.” Id. at 2.

{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, 93 N.M. 773, 777, 606 P.2d 183, 187 (1980) (“A warrantless arrest of a person for
violation of a misdemeanor is valid only if the offense occurred in the arresting officer’s
presence.”). The Court of Appeals did not find a violation of the misdemeanor arrest rule
because “the circumstantial evidence in this case would permit a reasonable inference that

2
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, 2001-NMSC-001,
¶ 13 (internal quotation marks omitted). We now address “actual physical control” for the
first time. Yet to be litigated is the distinction between “vehicle” and “motor vehicle.” The
Boone holding seems to constrain the DWI statute to “motor vehicle” as used by the “driver”
definition, notwithstanding the Legislature’s express preference for the broader term
“vehicle” in the substantive DWI provision. 105 N.M. at 225, 731 P.2d at 368. It appears
that this confusion between “motor vehicle” and “vehicle” has been imported into our jury
instructions, as well, contrary to express statutory language. See UJI 14-4501 NMRA
(providing that “the state must prove to your satisfaction beyond a reasonable doubt [that
t]he defendant operated a motor vehicle” (emphasis added)).

5
defendant committed the misdemeanor offense of DWI ‘in the presence’ of the arresting
officer.” State v. Boone, No. 8093, slip op. at 1. As the Court of Appeals reasoned, “[i]t
would defy common sense to require the officer to leave defendant’s car parked in the traffic
lane while the officer went to a magistrate for an arrest warrant, thereby endangering not
only the lives of the traveling public, but also the occupants of defendant’s car.” Id. at 4.
Therefore, the Court of Appeals held that “when the officer’s own observations, together
with the reasonable inferences which may be legitimately drawn from the circumstantial
evidence, give probable cause to believe, or reasonable grounds to suspect, that a person
under the influence was driving the vehicle, a warrantless arrest may be made.” Id. The
Court of Appeals determined in Boone that the defendant’s car, stopped in the middle of the
roadway with its lights out and motor running and with the defendant in the driver’s seat,
“coupled with defendant’s slurred speech and the smell of alcohol . . . justif[ied] a finding
that the officer had reasonable cause to believe, or reasonable grounds to suspect, that the
offense of DWI was being committed in his presence by the defendant.” Id. To hold
otherwise “would mean the officer could not draw reasonable inferences from the plain facts,
thus leading to absurd results.” Id. at 4-5.

{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, 105 N.M. at 226, 731 P.2d at 369.
This Court held that motion of a vehicle is unnecessary because “actual physical control” is
all that is needed to violate the statute. Id. Given this interpretation, “the trial court had
before it evidence upon which it could have found that the offense of DWI literally occurred
in the arresting officer’s presence[,]” if the trial court could find on remand that the
defendant was in “actual physical control” of the vehicle. Id.

{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

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{19} Following Boone, this Court did not address “actual physical control” again until
Johnson, 2001-NMSC-001. At issue in Johnson was “whether the State can charge a
defendant with DWI pursuant to NMSA 1978, § 66-8-102 (1997, prior to 1999 amendment)
when the defendant is on private property and in actual physical control of a non-moving
vehicle.” Id. ¶ 1. Neither of the consolidated cases in Johnson, however, turned on the
meaning of “actual physical control.” Id. ¶ 19 (“Respondents do not challenge the finding
that they were in actual physical control of their vehicles when they were arrested for
DWI[.]”). The Court’s review was limited to “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.” Id. ¶ 5. That is, while the “driving” prohibition applies on both
public and private property, id. ¶ 9, this Court sought to determine whether being in “actual
physical control” also applied on private as well as public property. Id. In holding that
“actual physical control” also applied on private property, Johnson “reject[ed] any
public/private property distinction with respect to the offense of DWI.” Id. ¶ 1.
Notwithstanding the limited scope of the issue before it, this Court went further to “define
‘actual physical control[.]’” Id. ¶ 19.

{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 an issue that was not squarely before us, was not challenged
by the parties, and was not necessary for decision in the case. Kent Nowlin Constr. Co. v.
Gutierrez, 99 N.M. 389, 390-91, 658 P.2d 1116, 1117-18 (1982) (holding that dicta is
language unnecessary to the decision of the issues before the court and is not binding as a
rule of law). This broadly worded dicta led to Defendant’s conviction in this case based on
very little evidence to show actual physical control of his vehicle.

{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, 115 N.M. 73, 846 P.2d 1082 (Ct. App.
1992), as well as an out-of-state case with a different DWI provision. Johnson, 2001-
NMSC-001, ¶ 19 (citing City of Cincinnati v. Kelley, 351 N.E.2d 85, 87 (Ohio 1976) (“The
clear purpose of the control aspect of the instant ordinance is to deter persons from being
found under circumstances in which they can directly commence operating a vehicle while
they are under the influence of alcohol or particular drugs.”)). In Harrison, the defendant
was a passenger in his own vehicle until it stalled and would not restart. 115 N.M. at 74, 846
P.2d at 1083. The driver steered the vehicle toward the curb and left in search of help. Id.
at 74-75, 846 P.2d at 1083-84. Concerned that the defendant would attempt to drive while
intoxicated, the driver took the keys from the ignition, placed them under the seat, positioned
bricks before the front and back tires of the vehicle on the driver’s side, and instructed the
defendant not to leave the vehicle. Id. Some time later, police officers investigated and
found the defendant “passed out behind the steering wheel of the car” with the key in the

7
ignition, the ignition turned on, the transmission in drive, and with the defendant’s foot on
the brake and hands on the steering wheel. Id. at 75, 846 P.2d at 1084. The officers noted
that the defendant had slurred speech, red blood-shot eyes, and smelled of alcohol. Id. The
defendant refused field sobriety tests, but after being transported to the Bernalillo County
Detention Center he submitted to a breath-alcohol test that produced readings of .17 and .15,
well in excess of the legal limit. Id.; § 66-8-102(C).

{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, 115 N.M. at 76, 846 P.2d at
1085. The Court of Appeals affirmed the defendant’s conviction, holding that “a defendant
may exercise ‘actual physical control’ over a vehicle when he is discovered behind the wheel
of an automobile, either passed out or asleep, under these circumstances.” Id. (emphasis
added). That is, the circumstantial evidence supported a finding that the defendant exerted
actual, not hypothetical, physical control over the vehicle because he turned on the vehicle’s
engine, placed its transmission in the drive position, and applied his foot to the vehicle’s
brake.

{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,
115 N.M. at 76, 846 P.2d at 1085. The Court of Appeals also determined for the first time
in Harrison that DWI is a strict liability crime because the statute “makes absolutely no
reference whatsoever to a required intent on the part of an accused.” Id. at 77, 846 P.2d at
1086. Based on the strict liability nature of the crime and on previous interpretations of the
legislative policy behind the DWI legislation, Harrison made strong statements about the
public policy supporting the Court’s interpretation of the statute. See id. (“the public’s
interest in deterring individuals from driving while intoxicated is compelling”; “the policy
behind the DWI statute is to prevent individuals from driving or exercising actual physical
control over a vehicle when they . . . are unable to exercise the clear judgment and steady
hand necessary to handle a vehicle with safety both to themselves and the public”); see also
Johnson, 2001-NMSC-001, ¶ 17 (“[T]he public interest and potential harm posed by
intoxicated drivers is so compelling that the offense of DWI is a strict liability crime.”). The
Harrison Court was particularly concerned with a defendant who argued that “he could not
be convicted of DWI because he was too intoxicated to form the conscious intent to drive
drunk.” 115 N.M. at 78, 846 P.2d at 1087. As the Court in Harrison reasoned in support
of its strict liability determination, “[t]o allow persons charged with DWI the opportunity to
present such a defense would be absurd and undoubtedly contrary to the statute’s purpose.”
Id.

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.

8
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,
2001-NMSC-001, ¶ 19.

{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,
2001-NMSC-001, ¶ 19 (equating “actual physical control” with being “in a situation in
which [drivers] can directly commence operating a vehicle while they are intoxicated”);
Atkinson v. State, 627 A.2d 1019, 1025 (Md. 1993) (noting that the view among many states
is that the purpose of the “actual physical control” language in DWI provisions is preventive,
aimed to protect the public from what inebriated individuals “might” do (internal quotation
marks and citation omitted)). We note that the Legislature has intended that “[n]o person
shall be sentenced for an attempt to commit a misdemeanor.” Section 30-28-1. This is true
in general, unless a specific statute provides otherwise. See City of Albuquerque v. Chavez,

3
“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,
1996-NMSC-073, ¶ 22, 122 N.M. 724, 931 P.2d 69 (citations omitted).

9
91 N.M. 559, 560, 577 P.2d 457, 458 (Ct. App. 1978) (holding that Section 30-28-1 is
“inapplicable if another statute authorizes the alleged attempted misdemeanor”). Insofar as
we believe that the Legislature equated proof of actual physical control with proof of driving,
Section 66-8-102 authorizes prosecution for attempted DWI. Thus, when the prosecution
relies on actual physical control to prove DWI, the prosecution must prove an overt act
sufficient to establish actual physical control of the vehicle along with the general intent to
drive. See § 30-28-1.

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, 105
N.M. at 228, 731 P.2d at 371 (Walters, J., and Sosa, J., dissenting). Foreshadowing what
was to come, Justice Walters was concerned that “[t]he rationale of the majority opinion
would apply as easily to anyone sitting in a parked car in front of his own house or in front
of any establishment, if the arresting officer smelled alcohol and observed slurred speech.”
Id. In addition to raising concerns that such conduct is not clearly proscribed by the express
language of the DWI statute, Justice Walters criticized the opinion for the “convoluted
rationale” behind importing the definition of “driver” into the DWI law. Id. Similarly, Chief
Justice Minzner and Justice Franchini joined in a forceful dissent to Johnson, raising
“concerns about whether Boone was correctly decided.” Johnson, 2001-NMSC-001, ¶ 34
(Minzner, C.J., and Franchini, J., dissenting). Chief Justice Minzner found the Boone
Court’s “logic . . . unclear.” Id. ¶ 36.

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, 2008-NMCA-017, ¶ 12 (citations omitted).
Resurrecting concerns from earlier dissents, the Court of Appeals majority and dissenting
opinions in Sims both urged this Court “to take another look at what constitutes driving
while intoxicated.” Id. ¶¶ 12, 15.

{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

10
risk of harm posed by intoxicated drivers[,]” Johnson, 2001-NMSC-001, ¶ 17, and “to
protect the health, safety, and welfare of the people of New Mexico.” Id. ¶ 6.

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, 115 N.M. at 77, 78, 846 P.2d at 1086, 1087; accord Johnson, 2001-
NMSC-001, ¶ 17 (affirming DWI is a strict liability crime). However, we also recognize
that extending DWI liability to an individual who gets behind the wheel in the parking lot
of a public restaurant or bar only to “realize that he or she is too intoxicated to drive . . .
despite the fact that this decision not to drive is a preferable outcome to having the
intoxicated person put the car in motion” is not clearly supported by the Legislature. See
State v. Wenger, 1999-NMCA-092, ¶ 17, 127 N.M. 625, 985 P.2d 1205, reversed by
Johnson, 2001-NMSC-001, ¶ 24. Creating this sort of liability could provoke an
unscrupulous driver to take his or her chances on the road, rather than sleeping it off in the
car, because it is possible to be arrested for DWI despite having formed the conscious intent
not to drive. The many public service announcements regarding DWI suggest that the public
has become more aware of the need for designated drivers or, in the absence of designated
drivers, to keep from driving their vehicles while intoxicated.

{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[.]” 2001-NMSC-001,
¶ 19. That language, however, was borrowed almost directly from an Ohio case reviewing
a city ordinance that expressly prohibited actual physical control of a vehicle while
intoxicated. Id. (citing Kelley, 351 N.E.2d at 86 (“‘No person who is under the influence of
alcohol or a drug of abuse . . . shall operate or be in actual physical control of any vehicle
within this city.’” (citation omitted))). Kelley held that the purpose of the actual physical
control element of the city ordinance in question was “to deter persons from being found
under circumstances in which they can directly commence operating a vehicle while they are
under the influence of alcohol or particular drugs.” 351 N.E.2d at 87.

{31} Consequently, we agree that the dicta in Johnson identifying the purpose of actual
physical control as “deter[ring] persons from placing themselves in a situation in which they
can directly commence operating a vehicle while they are intoxicated” was overly broad.
2001-NMSC-001, ¶ 19. The facts of this case exemplify how this language could be
misinterpreted to allow a conviction for conduct the Legislature did not intend to proscribe.
Otherwise, rather than driving while intoxicated, it would be parked while intoxicated. We

11
are confident that the intent element will align actual physical control with the legislative
intent identified in Boone and Johnson.

{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, 209 P.3d 629, 634 (Ariz. 2009) (en banc). We believe these non-exhaustive
factors would be useful for a New Mexico fact finder to determine whether an individual is
in actual physical control of a vehicle and has the general intent to drive so as to pose a real
danger to himself, herself, or the public. The factors are:

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;

12
 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, 209 P.3d
at 633 (citing RAJI (Standard Criminal) 28.1381(A)(1) (DUI) (3d ed. 2008)). We agree with
this additional factor when the prosecution relies on actual physical control to prove DWI.

{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. 115 N.M. at 75, 846 P.2d at 1084. The jury also
would have to determine whether these same facts evidenced the defendant’s intent to drive
so as to endanger the public. That the vehicle was on a roadway arguably increases the
danger posed to both the defendant and the public and supports an inference of the general
intent to drive. The facts in Boone are similar in this regard. The defendant’s vehicle was
in the middle of a traffic lane and the motor was running, but the lights were turned off.
Boone, 105 N.M. at 226-27, 731 P.2d at 369-70. Most importantly, there are no facts in
either case that indicate that the defendants were passive occupants or had been using their
vehicles as stationary shelters.

{36} In State v. Rivera, 1997-NMCA-102, ¶ 2, 124 N.M. 211, 947 P.2d 168, the defendant
“was found either unconscious or asleep at the wheel of his car in the front yard of his house;
the car’s engine racing.” While the Court of Appeals determined that Rivera was similar to
Harrison and so upheld the conviction, id. ¶ 3, the recitation of the facts does not make clear
what time of day the defendant was apprehended; whether the transmission was in drive;
whether he intended to drive or was in his vehicle for the sole purpose of listening to the

13
radio, as his wife contended; or why or how the vehicle came to rest in his front yard. It is
possible that, given our clarification of the meaning of actual physical control in this case,
the answers to these questions may have mandated a different outcome on appeal if the fact
finder could not conclude beyond a reasonable doubt that the defendant was anything other
than a passive occupant who did not intend to drive. We note that unlike Boone, the
defendant in Rivera was not stopped in the middle of a roadway, where it is unlikely an
individual would choose to use a vehicle as a place of shelter while intoxicated. The public
endangerment factor is also not as clearly implicated when a vehicle is lawfully parked in
a front yard.

{37} The facts of the consolidated cases we reviewed in Johnson also pose some
challenges under the more demanding totality test we introduce today. The defendant in
Wenger was found in the driver’s seat of his vehicle, with the keys in the ignition but the
engine off, parked off the roadway on private property. 1999-NMCA-092, ¶ 2, reversed by
Johnson, 2001-NMSC-001, ¶¶ 4, 24. While there was evidence that the defendant actually
had been driving, the Court of Appeals determined that the State did not preserve the
argument that there was “evidentiary support for an inference that Defendant was driving
while intoxicated[,]” and so affirmed the conviction based only on evidence of actual
physical control. Wenger, 1999-NMCA-092, ¶¶ 4, 18. It is unlikely that evidence of an
intoxicated individual sitting in his or her lawfully parked vehicle with the keys in the
ignition, but the ignition off, and nothing more, would be sufficient to establish actual
physical control under the more narrow test we introduce today. What facts would have
been sufficient to find actual physical control, however, were not at issue in Wenger. The
sole question in Wenger and Johnson, its companion case, was whether the crime of actual
physical control applied on private as well as public property because the defendants did not
challenge the finding of actual physical control. Johnson, 2001-NMSC-001, ¶ 1. The facts
in Johnson, to the extent they were developed at all, also appear to be insufficient under the
new totality test to indicate that control was actual, and not potential or hypothetical. The
defendant in Johnson was parked in a motel parking lot with the vehicle’s engine running,
the key in the ignition, and a large pool of condensation under the exhaust pipe, “indicating
that the car had possibly been at the location for three hours.” Id. ¶ 3. On these facts alone,
it is not clear whether the defendant was using his vehicle for anything other than a shelter,
or how either defendant was endangering himself or the public.

{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

14
merely what they might do. A finding that “there [is] nothing to prevent [the d]efendant
from . . . driving” is now inadequate. Sims, 2008-NMCA-017, ¶ 9.

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.

_________________________________
EDWARD L. CHÁVEZ, Justice

WE CONCUR:

___________________________________
CHARLES W. DANIELS, Chief Justice

___________________________________
PATRICIO M. SERNA, Justice

___________________________________
PETRA JIMENEZ MAES, Justice

___________________________________
RICHARD C. BOSSON, Justice

Topic Index for State v. Sims, Docket No. 30,827

CL CRIMINAL LAW
CL-DG Driving While Intoxicated
CL-IX Intoxication
CL-MH Motor Vehicle Violations

ST STATUTES
ST-IP Interpretation
ST-LI Legislative Intent
ST-RC Rules of Construction

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