State v. Johnson12/20/2000
nded to limit the reach of a statute. See, e.g., NMSA 1978, § 66-8- 114 (1978) (prohibiting careless driving "on the highway"); State v. Brennan, 1998-NMCA-176, 5-6, 126 N.M. 389, 970 P.2d 161 (holding that, unlike the offense of DWI, careless driving is prohibited on highways alone). In general, therefore, the DWI statute has no geographical limitation and applies to both public and private property.
Moreover, the Legislature further defined the scope of Section 66- 8-102 in Section 66-7-2. Section 66-7-2(A) provides the general geographical limitation: "The provisions of Article 7 of Chapter 66 NMSA 1978, relating to the operation of vehicles, refer exclusively to the operation of vehicles upon highways, except where a different place is specifically referred to in a given section." Section 66-7-2(B), which by its express terms applies to DWI, provides an exception to the general geographical limitation: "The provisions of Section[ ] . . . 66- 8-102 . . . shall apply upon highways and elsewhere throughout the state." (Emphasis added.) "Highway" is defined as "every way or place generally open to the use of the public as a matter of right for the purpose of vehicular travel, even though it may be temporarily closed or restricted for the purpose of construction, maintenance, repair or reconstruction." NMSA 1978, § 66-1-4.8(B) (1991). By providing a definite exception in Section 66-7-2(B), the Legislature clearly intended to prohibit DWI in a geographical area that reached beyond that falling within the definition of "highway." Analyzing these statutes together, therefore, we find that a person can violate Section 66-8-102 on public as well as private property. This interpretation is consistent with other jurisdictions which have determined that "elsewhere" encompasses both public and private property. See, e.g., Lunceford v. City of Northport, 555 So.2d 246, 247 (Ala. Crim. App. 1988); State v. Budden, 595 P.2d 1138, 1141 (Kan. 1979); Rettig v. State, 639 A.2d 670, 673-74 (Md. 1994).
The Respondents ask us to go one step further in the interpretation of these statutes and request that this Court find a public/private distinction based on the type of activity that constitutes "driv " under Section 66-8-102. It is well settled that a defendant can be charged with DWI under this section if: (1) the defendant is intoxicated and driving a moving vehicle on a public highway, see, e.g., State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 632, 904 P.2d 1044, 1057 (1995); (2) the defendant is intoxicated and driving a moving vehicle on a private street or private property, see State v. Richardson, 113 N.M. 740, 741, 832 P.2d 801, 802 (Ct. App. 1992); or (3) the defendant is intoxicated and is in actual physical control of a non-moving vehicle on a public highway, see Boone, 105 N.M. at 226, 731 P.2d at 369; see also State v. Tafoya, 1997-NMCA-083, 5, 123 N.M. 665, 944 P.2d 894; Harrison, 115 N.M. 73, 846 P.2d 1082. These consolidated cases trigger the last remaining possible prong of the offense of DWI - whether a defendant can be charged with a violation of the DWI statute if he or she is intoxicated and in actual physical control of a non-moving vehicle on private property. The Respondents argue that when a person is on private property a distinction should be drawn between actual physical control and driving. They assert that on private property, actual physical control of a non-moving vehicle is not sufficient to support the State charging a defendant with DWI.
The express provisions of Section 66-8-102 provide no distinction between "actual physical control" and "driving" based on the location of its occurrence. The Respondents, however, base their contention
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