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State v. Johnson12/20/2000
BACA, Justice
In these consolidated cases, we are called upon to clarify the offense of driving while intoxicated (DWI) and define its parameters. We granted certiorari pursuant to NMSA 1978, § 34-5-14(B) (1972) in order to review two cases which have been consolidated to address whether the State can charge a defendant with DWI pursuant to NMSA 1978, § 66-8-102 (1997, prior to 1999 amendment) when the defendant is on private property and in actual physical control of a non-moving vehicle. After a careful and in-depth analysis of the applicable statutes, existing case law, and the policy underlying our DWI legislation, we reject any public/private property distinction with respect to the offense of DWI. As such, the State may charge a person who is in actual physical control of a non-moving vehicle with DWI despite the fact that he or she is on private property. Accordingly, we reverse the Court of Appeals' decisions upholding the district court's orders dismissing the charges against the defendants.
I.
There are no disputed issues of fact in either of these consolidated cases. The parties have stipulated to the facts in their respective cases as follows. On January 10, 1998, an Aztec police officer responded to a dispatch call that reported an intoxicated driver in a Dodge truck with Texas license plate, RL0408. The officer located the described truck parked on private property with the Respondent, Chuck Wenger, seated in the driver's seat. Although the engine of the vehicle was not running, the key was in the ignition. After conducting the standard field sobriety tests, the officer believed that Mr. Wenger was under the influence of an intoxicating liquor and arrested him for DWI. Mr. Wenger's blood alcohol test results indicated .35 and .34 grams of alcohol in two hundred liters of breath - more than four times the legal limit.
Similarly, on March 15, 1998, a Farmington police officer observed a vehicle parked in the private parking lot of a motel . The officer noticed an individual, later identified as the Respondent, Albert Johnson, sitting in the driver's seat. Mr. Johnson was noticeably nodding his head in an exaggerated manner as if he were extremely fatigued. The vehicle's engine was running, the key was in the ignition, and a large pool of condensation was found under the exhaust pipes, indicating that the car had possibly been at the location for three hours. Observing signs of intoxication, the officer conducted the standard field sobriety tests. As a result of these tests, Mr. Johnson was arrested for DWI. His breath test results indicated a blood alcohol level of .18 and .17 - more than twice the legal limit.
Both Mr. Wenger and Mr. Johnson were charged with DWI. The district court found in both cases that, although Mr. Wenger and Mr. Johnson were in actual physical control of their respective vehicles as defined in Boone v. State, 105 N.M. 223, 226, 731 P.2d 366, 369 (1986), neither one of them was "operating" their vehicles because the vehicles were not on a public highway as defined by UJI 14-4511 NMRA 2000. Accordingly, the district court held that neither Mr. Wenger nor Mr. Johnson could be charged under Section 66-8-102 for DWI and dismissed the charges against them. In both cases, the State appealed to the Court of Appeals, which upheld the district court's orders. See State v. Wenger, 1999-NMCA-092, 1, 127 N.M. 625, 985 P.2d 1205; State v. Johnson, NMCA 20,230, slip op. (Aug. 19, 1999). In Wenger the Court of Appeals held that "when a DWI charge is based on `actual physical control' rather than `driving,' that offense must take place on a highway as defined by the Motor Vehicle Code." 1999-NMCA-092, 13
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