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State v. Grace9/10/1999
ufficient evidence to convict Defendant of DWI. We find Defendant's argument without merit. As the State argues, our Courts have held that "being in control of a vehicle synonymous with driving for purposes of the DWI statute." See Boone v. State, 105 N.M. 223, 224, 731 P.2d 366, 367 (1986); State v. Tafoya, 1997-NMCA-083, 3, 123 N.M. 665, 944 P.2d 894. State v. Wenger, 1999-NMCA-092, Vol. 38, No. 29, SBB 44, cert. granted, No. 25,796, June 30, 1999, does not apply in this case because Defendant's car was parked on the shoulder of the road.
{13} In this case, Officer Gerald Toland testified that he saw Defendant's car parked on the shoulder of the road with the engine running. Defendant was the only occupant and he was passed out in the driver's seat. Officer Toland noted a strong odor of alcohol and had difficulty waking Defendant. This evidence was sufficient for the district court to find beyond a reasonable doubt that Defendant was in control of the vehicle. See In re Ruben O., 120 N.M. 160, 165, 899 P.2d 603, 608 (Ct. App. 1995).
Conclusion
{14} We reverse Defendant's conviction of DWI, first offense, because Defendant was entitled to a jury trial based upon the charge of DWI, second offense. We hold that the State presented sufficient evidence of Defendant's control of the car to support the DWI charge.
{15} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
M. CHRISTINA ARMIJO, Judge
HARRIS L HARTZ, Judge (Concurring)
HARTZ, Judge (Concurring).
{16} I join fully in Judge Wechsler's opinion. I write separately only to make clear that we have not resolved all arguments that might have been raised by the State. In particular, the State did not raise the issue whether there is a constitutional right to a jury trial in district court after a jury trial in magistrate court. Cf. Ludwig v. Massachusetts, 427 U.S. 618 (1976).
HARRIS L HARTZ, Judge
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