(dissenting).
The majority opinion goes too far. Although we might agree that, in some circumstances, it is not necessary that a vehicle be in motion at the time the arresting officer observes the driver’s intoxication, in order to establish probable cause to arrest without a warrant, those circumstances did not exist in the instant case.
Collected at 74 A.L.R.3d 1138-1166, and the supplement thereto, are cases which deal with arrests of drunken drivers. Seventeen jurisdictions apparently have considered that issue. Only five have held that presence of the officer at the time of the commission of the act of driving while intoxicated is not required. Of those five jurisdictions, in only one case was it held that there was probable cause to arrest when the officer deduced that the intoxicated person had been driving before he was found “passed out” at the scene of a one-car accident. In every other case, the arrest was declared unlawful, or it was held lawful because the defendant admitted he had been driving while intoxicated or an eye witness had told the officer that he had seen the defendant driving immediately before the accident or the arrest.
In the instant case, there was no evidence of how long the car had been parked, or when defendant became intoxicated. There is nothing to refute an equally logical inference that defendant realized at some point that he was, or was becoming, intoxicated, and he stopped driving before the alcohol impaired his ability to drive. None of the circumstances present in any of the cases of the annotation are present in the case now before us.
That is not to say that defendant could not have been charged with other violations of the Motor Vehicle Code; we are only concerned here with the violation he was charged with. When the facts would just as easily permit the inference that defendant stopped his car to avoid a DWI violation that could result had he continued to drive, it is inconsistent, as well as bad law, to signal intoxicated persons that they might just as well continue driving because they will be arrested for DWI whether they stop or not. The 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. The record, as it stands, is without any corroboration of the officer’s assumption that defendant stopped driving only after he had become intoxicated.
Even under the convoluted rationale of the majority opinion that attempts to illustrate why the meaning of “drive” is unclear, there was still no evidence that defendant was driving while intoxicated, was in actual control of the vehicle, was exercising control over it, or was steering it while it was being towed.
Finally, the determination of probable case should be left up to the trial judge. See State v. Copeland, 105 N.M. 27, 727 P.2d 1342 (Ct.App.), cert. denied, 104 N.M. 702, 726 P.2d 856 (1986). Whether or not the trial judge felt that one of the elements of the violation required that the car had to be in motion, he also found no probable cause. The latter finding well could have been based on lack of evidence to show how long the car had been parked, when defendant became intoxicated, or whether he had been driving it after he became intoxicated.
If this Court is to decide, merely as a clarification of the law, that a car in motion is not always necessary to support a charge of DWI, it should nevertheless sustain the trial court’s decision on the basis of the court’s finding that probable cause did not exist to arrest for DWI without a warrant. State v. Copeland.
For the foregoing reasons, we are unable to agree with the majority opinion and, therefore, we respectfully dissent.
SOSA, Senior Justice, concurs.