State v. Harrison

Citation115 N.M. 73,1992 NMCA 139,846 P.2d 1082
Decision Date29 December 1992
Docket NumberNo. 13714,13714
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Thomas HARRISON, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

BLACK, Judge.

Defendant appeals his conviction for driving while intoxicated (DWI). The issues on appeal are whether Defendant's conviction for DWI was supported by substantial evidence and what type of criminal intent must be proved in order to convict a person for DWI. Specifically, this appeal presents the Court with the issue of whether a person who is discovered unconscious or asleep at the wheel of an automobile, whose engine is on and tires are blocked, can be convicted of DWI. We hold that under those circumstances, there is sufficient evidence to support a conviction for DWI. We further hold that the criminal offense of DWI, NMSA 1978, Section 66-8-102(A), (C) (Cum.Supp.1992), is a strict liability crime. Therefore, we affirm Defendant's conviction.


Defendant and a friend, Jude Mari (Mari), were at a mutual friend's home. Upon preparing to leave the residence, Mari noticed that Defendant was intoxicated and offered to drive for him. They got into Defendant's car. Mari drove and Defendant was a passenger. Mari drove the vehicle for a short distance when the car stalled and would not restart. Mari testified that he steered the vehicle as close as he could to the curb and parked it. Mari further testified that he then took the keys out of the ignition, placed them under the seat, and placed bricks under the front and back tires of the vehicle. Mari instructed Defendant not to leave the vehicle and then left in search of help.

Officer Longobardi was dispatched to the area in response to a call that an individual was slumped over the steering wheel of a vehicle. Longobardi testified that upon arriving at the scene, he saw Defendant's vehicle in the southbound lane of traffic, positioned at least ten feet away from the curb. Longobardi confirmed that bricks were underneath the tires of the vehicle on the driver's side.

Longobardi testified that, upon approaching the vehicle, he saw Defendant passed out behind the steering wheel of the car. He further testified that the key was in the ignition, the ignition was turned on, the transmission was in drive, and Defendant had his foot on the brake. The officer aroused Defendant, who spoke to Longobardi in a slurred manner. Longobardi smelled alcohol on Defendant's breath and noticed that Defendant had red, bloodshot eyes. On cross-examination, the officer admitted that he did not inquire of Defendant whether he had driven the vehicle to that location, or why the car was sitting there.

Officer Meloy accompanied Longobardi to the scene and confirmed his testimony that Defendant was passed out behind the wheel and that the keys were in the ignition with the engine running. Officer Meloy also testified that Defendant had his hands on the steering wheel.

After awakening Defendant, the officers asked him to submit to field sobriety tests which he refused. Defendant was transported to the Bernalillo County Detention Center where he submitted to breath tests which produced readings of .17 and .15.

In the metropolitan court proceedings, Defendant was found guilty of DWI. On appeal in the trial de novo in district court, Defendant and the State stipulated to all but one element of the charge of DWI. The sole issue before the district court was whether Defendant was "driving" the vehicle and was, therefore, in violation of the DWI statute, Section 66-8-102.

Relying on Boone v. State, 105 N.M. 223, 731 P.2d 366 (1986), the district court concluded that NMSA 1978, Section 66-8-102 (Cum.Supp.1992), makes it unlawful for any person who is under the influence to drive or be in actual physical control of a motor vehicle, and that motion of the vehicle was not required to support a conviction. The court also found that Defendant was in actual physical control of the vehicle. Furthermore, the district court concluded that the police officers had reasonable grounds to believe that Defendant had committed the offense of DWI and that the State had proven all of the elements of DWI beyond a reasonable doubt. Based on the above, the district court found Defendant guilty of DWI. This appeal followed.


Defendant was convicted of driving while intoxicated in violation of Section 66-8-102. Defendant's only defense to this charge is that he was not "driving" within the meaning of the statute. Our Supreme Court held that the defendant in Boone, who was found in the driver's seat of his automobile, stopped in a traffic lane late at night with the engine running, was guilty of "driving," stating:

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.

105 N.M. at 226, 731 P.2d at 369 (footnote omitted); see also N.M.Att'y Gen.Op. 5858 (1953) (person may be guilty of DWI if physically handling the controls even though car not in motion).

Defendant contends that the district court's conclusion that he was "driving" a vehicle under Section 66-8-102 is not supported by substantial evidence. See State v. Sparks, 102 N.M. 317, 694 P.2d 1382 (Ct.App.1985) (substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion). Defendant first attempts to distinguish Boone on the basis that there was no contention in that case that anyone other than the defendant was driving the vehicle, and the Boone defendant was conscious when discovered by the police. In contrast, in Defendant's case, he was discovered unconscious, and evidence was presented that only Mari had actually driven the vehicle. For the reasons that follow, we view these differences between the case at hand and Boone as distinctions without a legal difference.

Defendant appears to argue that the evidence to support his conviction was insufficient due to the fact that he was found unconscious behind the wheel. We note, as did the majority in Boone, that our Motor Vehicle Code, NMSA 1978, Secs. 66-1-1 to -8-140 (Repl.Pamp.1987 & 1989 & Cum.Supp.1992), defines a "driver" as one "who drives or is in actual physical control of a motor vehicle." Section 66-1-4.4(K) (Cum.Supp.1992). Several jurisdictions have determined that there is sufficient evidence to support a DWI conviction based on a defendant's "actual physical control" of a vehicle, even when the defendant is found unconscious or asleep at the wheel. See, e.g., Mitchell v. State, 538 So.2d 106 (Fla.Dist.Ct.App.1989) (per curiam) (defendant may be found in "actual physical control" when slumped over steering wheel, keys in ignition, but engine not running; car in parking lot); Wofford v. State, 739 P.2d 543 (Okla.Crim.App.1987) ("actual physical control" where defendant found asleep in car parked in road, with key in ignition); see also James O. Pearson, Jr., Annotation, What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance, 93 A.L.R.3d 7, Secs. 9[a], 15[a] (1979).

In reviewing the law from other jurisdictions on whether an unconscious or asleep individual can validly be determined to be in actual physical control of a vehicle, we find a discussion from the Oklahoma Court of Criminal Appeals to be apropos:

We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away.

Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975).

In the case at hand, Mari testified that he left Defendant in the passenger seat, stashed the ignition keys under the driver's seat, and instructed Defendant not to leave the vehicle. However, when the police officers discovered Defendant, he was seated in the driver's seat, the engine was running, the transmission was in the "drive" position, and Defendant had his foot on the brake. It can reasonably be inferred that Defendant actively searched for the vehicle keys, started the engine, and was prepared to drive away before he passed out or fell asleep. In other words, Defendant's efforts were evidence of his exercise of actual physical control over the vehicle.

The fact that the officers discovered no signs that the vehicle had been moved by Defendant is irrelevant. See Boone, 105 N.M. at 226, 731 P.2d at 369 (DWI does not require movement of the vehicle). Furthermore, the fact that the only evidence presented concerning driving focused on Mari and not Defendant is also irrelevant. See id. (DWI committed when a person under the influence drives or is "in actual physical control" of the vehicle).

Based on the above, we hold that, for purposes of a DWI conviction, a defendant may exercise "actual physical control" over a vehicle when he is discovered behind the wheel of an automobile, either passed out or asleep, under these circumstances. Therefore, there was sufficient evidence to support the district court's finding that Defendant was in actual physical control of the vehicle. Se...

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