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State v. Johnson12/20/2000
included the conduct of a driver who was in actual physical control of a motor vehicle upon a highway.
The Court's logic in so holding is unclear. The term "driver" includes persons who drive or are in actual physical control of a motor vehicle. The Legislature's usage of the conjunction "or" between "drives" and "in actual physical control" seems a strong indication that the Legislature did not consider the term "drives" to include "in actual physical control". To conclude that the term "drives" is coextensive with the statutory definition of "driver" and thus includes all situations where a driver is in actual physical control of a vehicle seems to me to require something more than the statutory analysis we performed in Boone. Perhaps we should never have equated the two terms and instead should have restricted our remarks to stating that the seriousness of the DWI problem in our state justified equating the two terms, but that such a task "requires legislative therapy, not judicial surgery." State v. Leiding, 112 N.M. 143, 146, 812 P.2d 797, 800 (Ct. App. 1991).
For these reasons, I would affirm.
PAMELA B. MINZNER, Chief Justice
I CONCUR:
GENE E. FRANCHINI, Justice
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