(dissenting)
{26} I respectfully dissent. I would affirm the formal opinion of the Court of Appeals in State v. Wenger, 1999-NMCA-092, 127 N.M. 625, 985 P.2d 1205, and the memorandum opinion of the Court of Appeals in State v. Johnson, No. 20,230, slip op. (NMCA Aug. 19, 1999). Affirming the Court of Appeals’ opinion would allow us to reconcile almost all of what has been written by an appellate court in this state on the issues the appeal raises and also to give some meaning to all of the language in the relevant statutes.
{27} The State has argued that under the Court of Appeals’ analysis, NMSA 1978, § 66-7-2 (1978) becomes meaningless. I respectfully disagree with this argument. Section 66-7-2(B) states, in part, that NMSA 1978, § 66-8-102 (1997, prior to 1999 amendment) applies upon highways and elsewhere throughout the state. Under the Court of Appeals’ analysis, Section 66-8-102 does apply elsewhere throughout the state; it applies elsewhere throughout the State when the defendant is found to have been driving, rather than only in actual physical control.
{28} The majority concludes that the Court of Appeals erred in construing the “upon a highway” language of NMSA 1978, § 66-l-4.4(K) (1991, prior to 1999 amendment) to modify “in actual physical control” but not “drives.”
Applying rules of grammar to Section 66-1-4.4(K), the word “drives” and the phrase “actual physical control” are both modified by the phrase “a motor vehicle, including a motorcycle,” all of which is in turn modified by the phrase “upon a highway.”
See Majority Opinion, ¶ 13. I respectfully disagree with this conclusion.
{29} We have previously explained that in construing statutes, “[Rjelative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote.” Hale v. Basin Motor Co., 110 N.M. 314, 318, 795 P.2d 1006, 1010 (1990) (quoted authority omitted). Applying this rule of statutory interpretation, known as the last antecedent rule, we held that under a statute requiring an automobile seller to disclose whether there has been an “alteration or chassis repair due to wreck damage,” the phrase “due to wreck damage” only modifies the immediately preceding phrase “chassis work.” Id. at 317, 795 P.2d at 1009.
{30} Section 66-l-4.4(K) states:
“driver” means every person who drives or is in actual physical control of a motor vehicle, including a motorcycle, upon a highway, who is exercising control over or steering a vehicle being towed by a motor vehicle or who operates or is in actual physical control of an off-highway motor vehicle.
Applying the last antecedent rule to the definition of driver under Section 66-l-4.4(K), the phrase “upon a highway” modifies the term “motor vehicle,” which in turn modifies the phrase “in actual physical control.” The term “motor vehicle” does not modify the term “drives.” See Hale, 110 N.M. at 318, 795 P.2d at 1010 (“As a rule of construction, the word “or” should be given its normal disjunctive meaning unless the context of a statute demands otherwise.”) (citations omitted). Therefore, I conclude that a person who drives while intoxicated anywhere within the State of New Mexico is guilty of the offense of driving while intoxicated. I also conclude that an intoxicated person who is in actual physical control of a motor vehicle upon a highway is guilty of the offense of driving while intoxicated, but an intoxicated person who is in actual physical control of a motor vehicle that is not located upon a highway has not committed the offense of driving while intoxicated.
{31} The commentary to our uniform jury instruction, NMRA 2000 UJI 14-4511, seems to me to rely on this distinction between “driving” and being in “actual physical control,” and to make a relatively coherent scheme of our statute and cases. The committee commentary accompanying UJI 14-4511 provides that:
if the person is in physical control of the vehicle, but not actually driving the vehicle, and the vehicle is off the road, that person is not guilty of driving while under the influence.
The Court of Appeals, in relying on the statutory distinction between “driving” and “actual physical control” and our uniform jury instruction, seems to me to make an appropriate choice in statutory interpretation.
{32} Any other statutory construction in light of our cases seems to me to present constitutional concerns regarding the due process rights of the Defendants. “[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). “There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).
{33} Prior to our decision in this case, neither the statutory language of Section 66-8-102(A) nor any of our prior holdings would have informed a defendant that being in actual physical control of a motor vehicle, while intoxicated, when the vehicle is not located on a highway is an illegal act. The sole potential basis upon which notice might be premised is the dicta in footnote 1 of Boone, stating that the Court did not believe that the language generally limiting the definition of “drivers” to persons “upon a highway” applies to the offense of DWI. 105 N.M. 223, 226, n. 1, 731 P.2d 366, 369, n. 1 (1986). Boone was decided prior to Hale. Under Hale, “upon a highway” does not modify “drives” as the Boone court appears to have believed. Our adoption of UJI 14-4511 seems to me to have been a recognition by this Court that the footnote in Boone no longer had any effect.
{34} In addition, I have concerns about whether Boone was correctly decided. Section 66-8-102(A) provides:
It is unlawful for any person who is under the influence of intoxicating liquor to drive any vehicle within this state.
{35} In Boone, we stated that the DWI statute is ambiguous because the meaning of “drive” is unclear. 105 N.M. at 225, 731 P.2d at 368 (1986). In order to determine the contours of the term “drive” we looked to the Legislature’s definition of “driver.” Id. at 226, 731 P.2d at 369. The Court decided that the term “drive” should apply coextensively with the term “driver,” and thereby included the conduct of a driver who was in actual physical control of a motor vehicle upon a highway.
{36} The Court’s logic in so holding is unclear. The term “driver” includes persons who drive or are in actual physical control of a motor vehicle. The Legislature’s usage of the conjunction “or” between “drives” and “in actual physical control” seems a strong indication that the Legislature did not consider the term “drives” to include “in actual physical control.” 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.” State v. Leiding, 112 N.M. 143, 146, 812 P.2d 797, 800 (Ct.App.1991).
{37} For these reasons, I would affirm.
FRANCHINI, J., concurs.