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State v. Johnson12/20/2000
lic interest and potential harm posed by intoxicated drivers is so compelling that the offense of DWI is a strict liability crime. See Harrison, 115 N.M. at 77-78, 846 P.2d at 1086-87.
The Court of Appeals observed that charging intoxicated drivers on highways with DWI and applying the offense to moving vehicles on private property "clearly serves the underlying policies of the DWI statute." Wenger, 1999-NMCA-092, 17. The Court proclaimed, however, that " he application of the DWI statute to stationary vehicles on private . . . property would not as clearly serve such purposes." Id. Additionally, Respondents argue that "the State's desire to penalize sends the wrong message to the public, for it would encourage drunk drivers, apprehensive about being arrested, to attempt to reach their destination while endangering others on the highway." According to the Respondents, actual physical control of a vehicle is less of a threat to the public than "driving." Accordingly, they conclude that it is reasonable to confine the offense of DWI, when a person is exercising actual physical control of a vehicle, to public highways. Moreover, in their view, it is also reasonable to allow an intoxicated driver to pull completely off the highway to "sleep it off" as long as they are on private property. We disagree.
Although the Respondents do not challenge the finding that they were in actual physical control of their vehicles when they were arrested for DWI, we find it helpful to define "actual physical control" in this case. As our prior case law illustrates, a person is in actual physical control over a vehicle when he or she exercises direct influence over the vehicle. See, e.g., Boone, 105 N.M. at 224, 731 P.2d at 367 (upholding a conviction for DWI where the defendant was discovered in the driver's seat of his automobile with the engine running); State v. Grace, 1999-NMCA-148, 12-13, 128 N.M. 379, 993 P.2d 93 (finding substantial evidence of "driving activity" where the defendant was "passed out" in the driver's seat of his vehicle with the engine running), cert. denied, No. 25,981 (1999); State v. Rivera, 1997- NMCA-102, 2-5, 124 N.M. 211, 947 P.2d 168 (finding sufficient evidence to support a conviction of DWI where the defendant was found unconscious or asleep at the wheel of his car in the front yard of his house with the car's engine running); Tafoya, 1997-NMCA-083, 2-5 (upholding a conviction of DWI where the defendant was in a parked vehicle that was inoperable, asleep at the wheel, with the key in the ignition, and the engine not running); Harrison, 115 N.M. at 74, 846 P.2d at 1083 (finding substantial evidence to support a DWI conviction where the defendant was discovered unconscious or asleep at the wheel of the automobile, with the engine on, even though the tires were blocked). We find that the clear purpose of the "actual physical control" element of the DWI statute is to deter persons from placing themselves in a situation in which they can directly commence operating a vehicle while they are intoxicated, regardless of the location of the vehicle. Cf. City of Cincinnati v. Kelley, 351 N.E.2d 85, 86-87 (Ohio 1976) (defining "actual physical control" as being physically capable of starting the engine and causing the vehicle to move).
A person under the influence of intoxicating liquor or drugs who exerts actual physical control over a vehicle, is a threat to the safety and welfare of the public. See Harrison, 115 N.M. at 76, 846 P.2d at 1085. We recognize that the threat might not be as great as it would be if the intoxicated person was actually driving the vehicle, but a substantial danger to the public still exists. The Court of Appeals in
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