State v. Johnson12/20/2000
harge a person with DWI pursuant to Section 66-8-102, despite the fact that the defendant is found on private property in actual physical control of a non-moving vehicle. As a result, we reverse the Court of Appeals' opinion in Wenger, 1999-NMCA-092 and memorandum opinion in Johnson, NMCA 20,230, disapprove UJI 14-4511 and its accompanying committee commentary, reverse the district court's orders dismissing the charges against Mr. Wenger and Mr. Johnson and order that the charges be reinstated.
IT IS SO ORDERED.
WE CONCUR:
PATRICIO M. SERNA, Justice
PETRA JIMENEZ MAES, Justice
PAMELA B. MINZNER, Chief Justice (dissenting)
GENE E. FRANCHINI, Justice (dissenting)
MINZNER, Chief Justice (dissenting)
I respectfully dissent. I would affirm the formal opinion of the Court of Appeals in State v. Wenger, 1999-NMCA-092, 127 N.M. 625, 985 P.2d 1205, and the memorandum opinion of the Court of Appeals in State v. Johnson, No. 20,230, slip op. (NMCA Aug. 19, 1999). Affirming the Court of Appeals opinion would allow us to reconcile almost all of what has been written by an appellate court in this state on the issues the appeal raises and also to give some meaning to all of the language in the relevant statutes.
The State has argued that under the Court of Appeals analysis, NMSA 1978, § 66-7-2 (1978) becomes meaningless. I respectfully disagree with this argument. Section 66-7-2(B) states, in part, that NMSA 1978, § 66- 8-102 (1997, prior to 1999 amendment) applies upon highways and elsewhere throughout the state. Under the Court of Appeals analysis, Section 66-8-102 does apply elsewhere throughout the state; it applies elsewhere throughout the State when the defendant is found to have been driving, rather than only in actual physical control.
The majority concludes that the Court of Appeals erred in construing the "upon a highway" language of NMSA 1978, § 66-1-4.4(K) (1991, prior to 1999 amendment) to modify "in actual physical control" but not "drives."
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 Majority Opinion, 13.
I respectfully disagree with this conclusion.
We have previously explained that in construing statutes, " elative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote." Hale v. Basin Motor Co., 110 N.M. 314, 318, 795 P.2d 1006, 1010 (1990) (quoted authority omitted). Applying this rule of statutory interpretation, known as the last antecedent rule, we held that under a statute requiring an automobile seller to disclose whether there has been an "alteration or chassis repair due to wreck damage," the phrase "due to wreck damage" only modifies the immediately preceding phrase "chassis work." Id. at 317, 795 P.2d at 1009.
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.
Applying the last antecedent rule to the definition of driver under Section 66-1-4.4(K), the phrase "upon a highway" modifies the term "motor vehicle," which in turn modifies the phrase "in actual
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