Boone v. State, 16085
| Decision Date | 31 December 1986 |
| Docket Number | No. 16085,16085 |
| Citation | 731 P.2d 366,105 N.M. 223,1986 NMSC 100 |
| Parties | Fred BOONE, Petitioner, v. STATE of New Mexico, Respondent. |
| Court | New Mexico Supreme Court |
Defendant Fred Boone was arrested without a warrant and charged with driving while under the influence of intoxicating liquor and drugs (DWI) after police officers discovered him in the driver's seat of his automobile, stopped in a traffic lane late at night with the automobile's engine running but its lights off. See NMSA 1978, Sec. 66-8-102 (Cum.Supp.1986) (DWI). Ruling that the warrantless arrest was unlawful, the trial court ordered the suppression of all evidence obtained after the arrest and the dismissal of the charges. That evidence included the results of a field sobriety test that defendant failed, his refusal to take a breathalyzer test at the police station, and statements of defendant and his passenger. The State appealed pursuant to NMSA 1978, Subsection 39-3-3(B), and the Court of Appeals reversed the trial court's judgment.
We granted certiorari, and now affirm the Court of Appeals' decision in part and reverse it in part. This case presents the following issues:
(1) Is motion of the vehicle a necessary element of the misdemeanor offense of DWI under Section 66-8-102?
(2) Did the trial court err in ruling the warrantless arrest unlawful on the ground that the arresting officer had no probable cause to believe the misdemeanor offense of DWI had been committed in his presence?
(3) Did the Court of Appeals err in reversing the trial court's finding that defendant was arrested at the time he was requested to take the field sobriety test and not later when he formally was placed under arrest?
We hold 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. Therefore, under the facts of this case, the trial court clearly erred in ruling the warrantless arrest unlawful on the ground that DWI was not committed in the presence of the arresting officer. Finally, because substantial evidence in the record supports the trial court's finding regarding the time of arrest, we hold that the Court of Appeals erred in reversing the trial court's finding on that issue. Accordingly, we reverse the Court of Appeals' decision in part and remand to the trial court for further proceedings.
Section 66-8-102 in pertinent part provides that "[i]t is unlawful for any person who is under the influence of intoxicating liquor to drive any vehicle within this state * * * *" (Emphasis added). Our Motor Vehicle Code, NMSA 1978, Secs. 66-1-1 to 66-8-140 (Orig.Pamp., Repl.Pamp.1984 and Cum.Supp.1986), defines "driver" as any person who drives or is in actual physical control of a motor vehicle. See NMSA 1978, Sec. 66-1-4(B)(18) (Repl.Pamp.1984). We hold, as a matter of law, that the meaning of "drive" in Section 66-8-102 is unclear; therefore, we may resort to the principles of statutory construction in order to resolve the ambiguity. See New Mexico State Board of Education v. Board of Education, 95 N.M. 588, 590, 624 P.2d 530, 532 (1981). We must ascertain and give effect to the intention of the Legislature. Board of Education v. Jennings, 102 N.M. 762, 765, 701 P.2d 361, 364 (1985).
Defendant draws our attention to the fact that prior to 1979, Section 66-8-102 made it unlawful for any person under the influence "to drive or be in actual physical control of any vehicle * * * *" NMSA 1978, Sec. 66-8-102, amended by 1979 N.M.Laws, ch. 71, Sec. 7 (codified at NMSA 1978, Sec. 66-8-102 (Cum.Supp.1986)). He argues that adoption of an amendment is evidence that the Legislature intended to make a substantive change in the law, Stang v. Hertz Corporation, 81 N.M. 69, 73, 463 P.2d 45, 49 (Ct.App.1969), aff'd on other grounds, 81 N.M. 348, 467 P.2d 14 (1970), and that the 1979 elimination of the phrase "or be in actual physical control of" indicates the Legislature's intention to narrow the scope of the statutory offense. We disagree.
From 1953 until 1978, our Motor Vehicle Code made it unlawful for any person under the influence of intoxicating liquor "to drive or be in actual physical control of any vehicle within this state." 1953 N.M.Laws, ch. 139, Sec. 54 (). Consistent with the DWI provision, the Motor Vehicle Code defined "driver" as "[e]very person who drives or is in actual physical control of a vehicle." 1953 N.M.Laws, ch. 139, Sec. 11 (codified at NMSA 1953, 2d Repl.Vol. 9, Part 2 (1972), Sec. 64-14-13).
In 1978, the Motor Vehicle Code was rewritten substantially, and the definition of "driver" was amended to encompass "every person who drives or is in actual physical control of a motor vehicle * * * or who is exercising control over, or steering, a vehicle being towed by a motor vehicle." 1978 N.M.Laws, ch. 35, Sec. 4(B)(17) (). The new definition was inconsistent with the unchanged DWI section in its references to motor vehicles but not in its use of the phrase "drives or is in actual physical control of." See 1978 N.M.Laws, ch. 35, Sec. 510 ().
The Legislature could have conformed Section 66-8-102 to the definition by adding the appropriate references to motor vehicles and towed vehicles. Instead it chose to streamline and clarify the DWI section by using only the statutorily defined term, "drives." See NMSA 1978, Sec. 66-1-4(A) (Repl.Pamp.1984) (applicability of definitions); cf. Commonwealth v. Kloch, 230 Pa.Super. 563, 575-76, 327 A.2d 375, 383 (1974) (). But cf. State v. Williams, 20 Ohio Misc. 51, 251 N.E.2d 714 (C.P.1969) (). We believe that the 1979 amendment was intended to rectify the inconsistency between the updated definition and the language of the DWI section and to make clear that the Legislature's definition of "driver" applies to the offense of DWI. We therefore hold that Section 66-8-102 makes it unlawful for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of a motor vehicle or to exercise control over or steer a vehicle being towed by a motor vehicle; motion of the vehicle is not a necessary element of the offense.1
We long have held that, in the absence of statutory authority, a duly authorized peace officer may make an arrest for a misdemeanor without a warrant only if he has probable cause or reasonable grounds to believe that the offense has been committed in his presence. See State v. Luna, 93 N.M. 773, 777, 606 P.2d 183, 187 (1980); City of Roswell v. Mayer, 78 N.M. 533, 534, 433 P.2d 757, 758 (1967); Cave v. Cooley, 48 N.M. 478, 481-82, 152 P.2d 886, 888 (1944). The trial court in the present case concluded that defendant's arrest was unlawful because the police officer had no probable cause to believe that the offense of DWI was being committed in his presence when he discovered defendant's stationary automobile.
The trial court's holding clearly was premised upon its erroneous conclusion that Section 66-8-102 requires that the vehicle be placed in motion. A reviewing court is not bound by a trial court's ruling that is predicated upon a mistake of law. State v. Boeglin, 100 N.M. 127, 132, 666 P.2d 1274, 1279 (Ct.App.), rev'd on other grounds, 100 N.M. 470, 672 P.2d 643 (1983); see also Martinez v. Martinez, 93 N.M. 673, 676, 604 P.2d 366, 369 (1979). We therefore agree with the Court of Appeals' decision to reverse the trial court's order suppressing the evidence obtained and dismissing the charges against defendant.
However, we do not approve of the rationale of the Court of Appeals' decision. Assuming that motion of the vehicle was an element of the offense, the Court of Appeals held that an officer may make a warrantless arrest for the misdemeanor offense of DWI committed in his presence when he reasonably can infer from facts known to him through his senses that a person under the influence was driving a vehicle. The Court of Appeals' expansion of the meaning of the requirement that the offense be committed "in the presence of" the officer is unnecessary to the determination of this case because, under our interpretation of Section 66-8-102, the trial court had before it evidence upon which it could have found that the offense of DWI literally occurred in the arresting officer's presence. See generally City of Roswell v. Mayer, 78 N.M. at 534-35, 433 P.2d at 758-59; State v. Trujillo, 85 N.M. 208, 211, 510 P.2d 1079, 1082 (Ct.App.1973) ().
The record indicates that the officer found defendant in the driver's seat of his automobile, conscious, parked in a traffic lane with the automobile's motor running but its lights off, at 11:10 p.m.; that he smelled alcohol on defendant's breath when he approached the automobile to investigate the situation; and that he observed defendant's slurred speech and unsteady walking even before he asked defendant to submit to a field sobriety test. We remand this case to the trial court in order for it to make appropriate factual findings and conclusions of law regarding whether the officer had probable cause to arrest defendant without a warrant.
The trial court...
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