Drive

Drive

“Drive” is not defined in the DWI statute. New Mexico courts have ruled that the term “drive” in §66-8-102 means either driving or being in actual physical control of a vehicle. The vehicle does not need to be in motion.

In Boone v. State, 105 N.M. 223 (1986), the Supreme Court upheld a DWI conviction against a defendant who was discovered in the driver’s seat of his car, stopped in a traffic lane late at night with the engine running and the lights off. The 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 or exercises control over or steers a vehicle being towed.” Boone at 224. The court reached this conclusion by using the definition of “driver” in §66-1-4.4(K) of the Motor Vehicle Code.

A person is in “actual physical control” over a vehicle when he or she exercises direct influence over the vehicle. The purpose of the "actual physical control" element “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.” State v. Johnson, 2001-NMSC-001, ¶ 19.

Examples of “actual physical control” of a vehicle under the DWI statute include:

• Defendant was in the driver’s seat of a parked car with the engine running and a large pool of condensation under the exhaust pipes, indicating the car had possibly been at the location for three hours. State v. Johnson, 2001-NMSC-001, ¶ 3.

• Defendant was in the driver’s seat of a parked truck, with the key in the ignition and the engine not running. State v. Johnson, 2001-NMSC-001, ¶ 2 (facts of State v. Wenger, consolidated with Johnson).

• Defendant was passed out in the driver's seat of his vehicle with the engine running. State v. Grace, 1999-NMCA-148, ¶¶ 12-13.

• 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. State v. Rivera, 1997-NMCA-102, ¶¶ 2-5.

• Defendant was asleep at the wheel in a parked vehicle that was inoperable, with the key in the ignition and the engine not running. State v. Tafoya, 1997-NMCA-083, ¶¶ 2-5.

• Defendant was discovered passed out at the wheel of a car with the engine running, even though the tires were blocked. State v. Harrison, 115 N.M. 73, 74 (Ct. App. 1992).

• Defendant was discovered in the driver's seat of his car, stopped in a traffic lane at night with the engine running but the lights off. Boone v. State, 105 N.M. 223, 224 (1986).

The jury instructions on the essential elements of DWI require proof beyond a reasonable doubt that “the defendant operated a motor vehicle.” UJI Criminal 14-4501, 14-4502, 14-4503, 14-4506, 14-4507, 14-4508, 14-4509. UJI-Criminal 14-4511, an instruction on operating or driving a motor vehicle, states that a person is “operating” a motor vehicle if the person is:

• Driving the motor vehicle; or

• In actual physical control, whether or not the vehicle is moving; or

• Exercising control over or steering a vehicle being towed by a motor vehicle; or

• Operating an off-highway motor vehicle; or

• In actual physical control of an off-highway motor vehicle, whether or not the vehicle is moving.

The defendant’s statements may be used to prove that he or she was the driver. State v. Greyeyes, 105 N.M. 549, 552 (Ct. App. 1987). Typically, such statements are introduced by the prosecution in situations, for example, where law enforcement comes upon a vehicle where two or more alleged occupants are already outside of the vehicle and therefore the officer did not observe anyone in the driver’s seat.