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State v. Johnson12/20/2000
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.
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.
Any other statutory construction in light of our cases seems to me to present constitutional concerns regarding the due process rights of the Defendants. " 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 (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 (1964).
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.
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.
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
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