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State v. Johnson12/20/2000
s on this Court's analysis in Boone, 105 N.M. at 225-26, 731 P.2d at 368-69, and UJI 14-4511. Boone addressed whether motion of a vehicle is a necessary element of the offense of DWI. 105 N.M. at 224, 731 P.2d at 367. The defendant in Boone was charged with DWI pursuant to Section 66-8-102 when he was discovered in the driver's seat of his automobile, stopped in a traffic lane late at night with the vehicle's engine running and the lights off. Id. This Court held that "the offense of DWI under Section 66-8-102 does not require motion of the vehicle; the offense is committed when a person under the influence drives or is in actual physical control of a motor vehicle." Id.
In reaching this holding, this Court concluded, as a matter of law, that the meaning of "drive" in Section 66-8-102 is unclear and therefore relied on the statutory provision defining the term "driver," currently Section 66-1-4.4(K), to interpret the meaning of the term "drive" in the DWI statute. See id. at 225, 731 P.2d at 368. Section 66-1- 4.4(K) states:
"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[.] (Emphasis added.)
Through reference to this provision, this Court established that "actual physical control" of a vehicle is sufficient to support a DWI conviction.
The Respondents argue that by relying on the definitional statute to support its holding in Boone, this Court incorporated the definition of "driver" into Section 66-8-102. Accordingly, they assert that this Court is limited when considering "actual physical control" to activity that takes place "upon a highway." Therefore, relying on this definitional statute, coupled with the fact that they were on private property and not "upon a highway," the Respondents assert they cannot be charged with DWI. The Respondents' analysis, however, is incomplete.
Applying rules of grammar to Section 66-1-4.4(K), the word "drives" and the phrase "actual physical control" are both modified by the phrase "a motor vehicle, including a motorcycle," all of which is in turn modified by the phrase "upon a highway." See Wilson v. Denver, 1998- NMSC-016, 16, 125 N.M. 308, 961 P.2d 153 (applying rules of grammar to statutory construction). Therefore, the term "driver," where it is found throughout the Motor Vehicle Code, generally includes persons who drive a motor vehicle upon a highway and persons who are in actual physical control of a motor vehicle upon a highway. See NMSA 1978, § 66-1-4 (1991) (stating, "Sections 66-1-4.1 through 66-1-4.20 . . . define terms for general purposes of the Motor Vehicle Code."). Despite the express limitation to "upon a highway" found in this general definitional statute, our analysis does not end here. Instead, we must consider the effect of Section 66-7-2. Section 66-8-102 is among those offenses whose geographical reach is specifically broadened by Section 66-7-2. The Legislature has expressly and specifically provided that Section 66-8-102 "shall apply upon highways and elsewhere throughout the state." Section 66-7-2(B) (emphasis added). Section 66-7-2 does not distinguish between driving and actual physical control and therefore we conclude that this section broadens the geographical reach of Section 66-8-102 to "highways and elsewhere throughout the state" regardless of the conduct which constitutes driving while intoxicated. "When in a specific section of the Motor Vehicle Code a different meaning is given for a term defined for general purp
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