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State v. Wenger5/19/1999
{1} The State appeals the district court's dismissal of a charge of driving while intoxicated (DWI) against Defendant. The district court dismissed the charge because Defendant was arrested while in actual physical control of a non-moving vehicle on private property. Based on a common-sense interpretation of the DWI statute, NMSA 1978, § 66-8-102 (1997), related statutes, the cases that have interpreted them, and the relevant uniform jury instruction, UJI 14-4511 NMRA 1999, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
{2} The parties stipulated to the facts of this case. On January 10, 1998, Aztec Police Officer Todd Charles received a call reporting an intoxicated driver in a tan Dodge truck with Texas license plate number RLO408. Officer Charles located the described truck at an Aztec address. The truck was parked on private property. Officer Charles found Defendant in the driver's seat of the truck with the keys in the ignition, but the vehicle's engine was not running.
{3} Officer Charles asked Defendant to step out of the vehicle. The officer observed that Defendant had slurred speech and watery eyes and smelled strongly of alcohol. Defendant failed the horizontal-gaze-nystagmus test and the walk-and-turn test. Defendant refused to complete the one-leg-stand test. The officer arrested Defendant for driving while under the influence of intoxicating liquor. Defendant agreed to breath testing, which registered his blood alcohol content at .35 and .34.
{4} The magistrate court found Defendant guilty of aggravated DWI and consumption or possession of alcoholic beverages in open containers in a motor vehicle, NMSA 1978, § 66-8-138 (1989). On appeal to the district court, the State dismissed the open-container count and the trial court granted Defendant's motion to dismiss the DWI. The district court ruled that although Defendant was in actual physical control of the truck, Defendant was not in violation of the statute because the truck was not on a highway as required by UJI 14-4511. The State now appeals the dismissal, arguing that the trial court misapplied the DWI statute. To the extent that the State may be arguing that there is evidentiary support for an inference that Defendant was driving while intoxicated on the highway, this argument was not preserved in the trial court. See State v. Lopez, 99 N.M. 385, 386, 387, 658 P.2d 460, 461, 462 (Ct. App. 1983) (holding that it is the State's burden, as appellant, to make its contentions known in the trial court).
DISCUSSION
{5} This case requires us to interpret Section 66-8-102(A) and related statutes. This Court reviews issues of statutory construction and interpretation de novo. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995); State v. Arellano, 1997-NMCA-074, 3, 123 N.M. 589, 943 P.2d 1042.
{6} The starting point for our analysis is the language of the statutes themselves. The DWI statute provides:
"It is unlawful for any person who is under the influence of intoxicating liquor to drive any vehicle within this state."
Section 66-8-102(A). The related statutes that are of concern here are NMSA 1978, § 66-7-2(B) (1978):
"The provisions of Section . . . 66-8-102 . . . shall apply upon highways and elsewhere throughout the state."
and NMSA 1978, § 66-1-4.4(K) (1991):
" "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
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