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State v. Wiberg3/17/1988
committing the lesser included offense. Id. A comparison of the elements of vehicular homicide by DWI and reckless driving, however, shows that all of the elements of the reckless driving offense are not necessarily included in the offense of vehicular homicide by DWI. See § 66-8-113(A). The state concedes on appeal that defendant's DWI sentence under count III must be vacated and has merged.
In determining necessarily included offenses, however, we no longer consider the statutory elements of the offenses in a vacuum. State v. Brecheisen, 101 N.M. 38, 677 P.2d 1074 (Ct. App.1984). Instead, we regard the offenses in light of the facts before us. See State v. DeMary, 99 N.M. 177, 655 P.2d 1021 (1982); State v. Jacobs.
Here, there was evidence that defendant was the driver of the truck and that he ran a stop sign. Further, defendant smelled of alcohol, had slurred speech, swayed back and forth while on a hospital bed, and admitted to drinking at least two bourbons with beer chasers prior to the accident. Defendant more importantly, had a .16 percent blood-alcohol level. This evidence is sufficient to convict defendant of DWI. See City of Portales v. Shiplett, 67 N.M. 308, 355 P.2d 126 (1960).
While evidence of intoxication might bear upon the question of whether a defendant is guilty of reckless driving, it does not necessarily prove it. Intoxication is but one circumstance to be considered by the fact finder in deciding the issue. See State v. Sisneros. There was testimony in this case to the effect that defendant ran a stop sign prior to the collision. This fact, along with the evidence of intoxication, would allow a fact finder to reasonably find defendant guilty of reckless driving. Id.; cf. State v. Myers, 88 N.M. 16, 536 P.2d 280 (Ct. App.1975) (circumstances of intoxication attending running a red light might reasonably lead jury to a finding of recklessness). Here, however, defendant was convicted of vehicular homicide while driving under the influence of intoxicating liquor, and not while driving recklessly.
Hence, given the facts of this particular case, defendant's conviction of reckless driving is not necessarily included in his conviction of vehicular homicide while driving under the influence . Accordingly, there is no merger of the two convictions. See State v. Jacobs.
Conclusion
For these reasons, we affirm all four of defendant's convictions; however, defendant's sentence for the DWI conviction must be vacated. Accordingly, we remand to the trial court to vacate defendant's six month DWI sentence.
IT IS SO ORDERED.
LORENZO F. GARCIA, Judge
WE CONCUR:
THOMAS A. DONNELLY, Chief Judge
PAMELA B. MINZNER, Judge
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