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State v. Johnson12/20/2000
oses in Sections 66-1-4.1 through 66- 1-4.20 . . . the specific section's meaning and application of them shall control." Section 66-1-4(A) (emphasis added). We conclude that Section 66-7-2 is the more specific statute since it refers directly to Section 66-8-102 and acts to clarify its geographical reach. Section 66-1-4.4(K), on the other hand, is the more general non-substantive definitional section which is applicable to all sections of the Motor Vehicle Code and only acts to assist in defining general terms found throughout the Code. Because these statutes cannot be harmonized in a way that reflects the intent of the Legislature, we hold that Section 66-7-2, as the specific statute, shall control. By relying too heavily on the words "upon a highway" in Section 66-1-4.4(K), the Respondents ignore this critical step in the analysis and, as a result, reach a flawed conclusion.
Boone supports our conclusion today. This Court recognized the unique nature of the DWI statute in footnote 1 of Boone.
We note that the language in Subsection [66-1-4.4(K)] generally limiting the definition of drivers to persons "upon a highway" does not apply to the offense of DWI. At the time it enacted that definition the Legislature expressly and specifically provided that Section 66-8-102 "shall apply upon highways and elsewhere throughout the state." [Section 66-7- 2]. This specific statute will be construed as an exception to the general definitional statute. [Citations omitted.] 105 N.M. at 226 n.1, 731 P.2d at 369 n.1.
Today, we simply acknowledge the validity of that reasoning and extend the same rationale to define the geographical reach of the DWI statute - an issue not triggered by the facts in Boone. As noted in footnote 1 of Boone, therefore, the general definitional statute, which limits the definition of "driver" to persons "upon a highway," does not apply to the offense of DWI. Accordingly, we find that Section 66-8-102 applies to private as well as public property, regardless of whether the intoxicated person is driving or in actual physical control of a vehicle.
IV.
The Court of Appeals in Wenger, while agreeing with the Respondents' interpretations of the pertinent statutes, also based its holding on UJI 14-4511. 1999-NMCA-092, 14-15. UJI 14-4511 states:
A person is "operating" a motor vehicle if the person is: [driving the motor vehicle;] [in actual physical control whether or not the vehicle is moving if the vehicle is on a highway;] [exercising control over or steering a vehicle being towed by a motor vehicle;] [in actual physical control of an off-highway motor vehicle].
The committee commentary states:
Under this instruction anyone under the influence of alcohol or drugs who actually drives a motor vehicle, who exercises control over a vehicle being towed by a motor vehicle, or who operates or is in actual physical control of an off-highway vehicle, anywhere in the state, on the highway or off, is guilty of driving while under the influence. In addition, anyone under the influence of alcohol or drugs who is in actual physical control of a motor vehicle on a street, even if the person is asleep behind the wheel and not actually driving the vehicle, is guilty of driving while under the influence. See State v. Boone, 105 N.M. 223, 731 P.2d 366 (1986). However, 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.
We recognize that this Court's approval of this jury instruction may have served to confuse matters further. There is "a presumptio
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