STATE of New Mexico, Plaintiff-Appellee, v. Mark SIMS, Defendant-Appellant, 143 N.M. 400

OPINION CASTILLO, Judge. {1} Defendant appeals his conviction for driving while intoxicated (DWI) under NMSA 1978, § 66-8-102 (2005) (amended 2007). The issue in this case is whether Defendant had actual physical control of his vehicle when he was discovered asleep or passed out at the wheel with the ignition key on the passenger seat. Because the location of the ignition key on the passenger seat would allow the person sitting in the driver’s seat to start the automobile and drive away at any time, we hold that the Defendant had actual physical control of the vehicle.

Accordingly, we affirm Defendant’s conviction. I. BACKGROUND {2} Defendant was charged with one count of DWI. The parties stipulated the following facts. The arresting officer found Defendant passed out or asleep behind the wheel of a vehicle, which was parked in a commercial parking lot. The engine was not running, and the officer could see keys in plain view on the passenger seat. The officer discerned a strong odor of alcohol and noticed Defendant’s bloodshot, watery eyes and slurred speech.

Defendant admitted to having had three drinks, and he performed poorly on field sobriety tests. {3} The metropolitan court (metro court) ruled that Defendant had actual physical control of the vehicle because he could have easily started and driven the car under the circumstances stipulated by the parties. Defendant then entered a conditional plea of guilty to the DWI charge and reserved his right to appeal the metro court’s ruling. {4} After considering Defendant’s appeal, the district court affirmed the judgment of the metro court.

The district court essentially agreed with the metro court’s assessment: because the ignition key was accessible to Defendant, he was physically capable of starting the car; therefore, Defendant had actual physical control of the vehicle. Defendant appeals the district court’s judgment. II. DISCUSSION {5} The statute under which Defendant was charged is

Section 66-8-102, which states, “It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.”

Section 66-8-102(A). Relying on the definition of “driver” as contained in the Motor Vehicle Code, the New Mexico Supreme court interpreted the term “driver” to include not only those who are actually driving a motor vehicle but also anyone who is in “actual physical control” of the vehicle. NMSA1978, § 66-1-4.4(K) (1999) (amended 2007); Boone v. State, 105 N.M. 223, 225-26, 731 P.2d 366, 368-69 (1986). The issue of whether Defendant had actual physical control of his vehicle when the ignition key lay on the passenger seat requires an application of law to fact, which we review de novo. See State v.

Baca, 2004-NMCA-049, ¶ 11, 135 N.M. 490, 90 P.3d 509. {6} Defendant makes two arguments to support the theory that he was not in actual physical control of his car. First, Defendant asserts that New Mexico law has required that the key be found in the ignition in order to establish the driver’s actual physical control of the vehicle. We disagree. {7} What constitutes actual physical control has been decided based on the facts of a particular case. See, e.g., State v.

Johnson, 2001-NMSC-001, ¶¶ 2-4, 24, 130 N.M. 6, 15 P.3d 1233 (noting that the defendants did not dispute the fact of actual physical control when they were found in the driver’s seats of cars parked on private property with keys in the ignition); Boone, 105 N.M. at 226, 731 P.2d at 369 (holding that the car need not be in motion to establish actual physical control); State v. Grace, 1999-NMCA-148, ¶ 13, 128 N.M. 379, 993 P.2d 93 (finding actual physical control where the car was parked on the shoulder, the engine was running, and the defendant-the only occupant-was passed out in the driver’s seat); State v.

Rivera, 1997-NMCA-102, ¶¶ 2-3, 124 N.M. 211, 947 P.2d 168 (holding that the defendant, who was asleep or unconscious behind the wheel, had actual physical control of the car parked and running in front of his house); State v. Tafoya, 1997-NMCA-083, ¶¶ 2, 5, 123 N.M. 665, 944 P.2d 894 (stating that the defendant had actual physical control over his inoperable car, which was parked diagonally across a public street).

While we agree with Defendant that in each of these cases, the key was in the ignition, we do not agree with Defendant that the absence of the key in the ignition necessarily precludes a finding of actual physical control. {8} We examine the plain meaning of

Section 66-8-102 in the context of the intent of the legislature. Johnson, 2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233. The “clear purpose” of

Section 66-8-102 is to “deter persons from placing themselves in a situation in which they can directly commence operating a vehicle while they are intoxicated.” Johnson, 2001-NMSC-001, ¶¶ 1, 19, 130 N.M. 6,15 P.3d 1233. {9} In our case, the ignition key was on the passenger seat next to Defendant, who was asleep or passed out in the driver’s seat. Under settled law, Defendant had actual physical control if he could exercise direct influence over the vehicle. Id. ¶ 19. There is no evidence regarding how Defendant’s vehicle came to be in the commercial parking lot.

The only issue before us relates to Defendant’s ability to drive away from that lot. Based on the facts of this case, there was nothing to prevent Defendant from awakening, reaching for the keys, and driving from the parking lot. The policy behind

Section 66-8-102, as stated in Johnson, is to prevent this type of risk to the public because intoxicated persons are “unable to exercise the clear judgment and steady hand necessary to handle a vehicle with safety both to themselves and the public.” 2001-NMSC-001, ¶ 17, 130 N.M. 6, 15 P.3d 1233 (internal quotation marks and citation omitted). {10} Second, Defendant contends that the location of the ignition key in the passenger seat indicated that Defendant decided not to drive the vehicle and that a determination of actual physical control would thus be contrary to the legislative intent of

Section 66-8-102. Again, we disagree. Our Supreme Court, in Johnson, explained that “[pjublic safety is best advanced by deterring impaired persons from driving or placing themselves in a position of actual physical control of their vehicles in the first instancel}] since such control frequently leads to movement of the vehicle.” 2001-NMSC-001, ¶ 22, 130 N.M. 6, 15 P.3d 1233. In State v. Harrison, the defendant was intoxicated, and his friend offered to take him home. 115 N.M. 73, 74, 846 P.2d 1082, 1083 (Ct.App.1992). On the way, the vehicle broke down. Id.

The defendant’s friend left him in the front passenger seat of the vehicle and went to get help. Id. at 74-75, 846 P.2d at 1083-84. Before leaving, however, the friend, in an attempt to prevent the defendant from driving the vehicle, placed the ignition key under the seat and put bricks in front of the vehicle’s tires. Id. at 74, 846 P.2d at 1083. In spite of these efforts, the defendant, upon awakening, located the keys, started the engine, engaged the transmission, put his hands on the wheel, and passed out before he could drive away. Id. at 75, 846 P.2d at 1084.

Although the defendant in Harrison was found with the engine running, while Defendant in our case had not started the engine when the police discovered him, the risks are similar. Accordingly, we conclude that the legislative intent behind

Section 66-8-102 is best served by deterring an intoxicated person from putting himself behind the wheel of a car when he has immediate access to the ignition key of the vehicle. {11} We now address the dissent. Although we have concerns with conduct of this nature rising to the level of DWI, we cannot agree with the reasoning of the dissent.

Once our Supreme Court decided that the test is actual physical control and that the test is satisfied by a person passed out in the driver’s seat with the key in the ignition, then it seems to us that establishing a dividing line at that point or millimeters away is not supported by any coherent rationale, other than a desire to draw a line somewhere. The dissent supports its line by hypothetical situations of persons asleep in the backseat or outside the car.

According to the dissent’s line, a fully conscious person with the key in his hand just a few feet from the ignition and about to start the car would fall outside the Johnson rule, as would Defendant in this case, with the keys on the seat beside him. The test cannot be one of consciousness, since the defendants in cases Johnson relied on were passed out. See Johnson, 2001-NMSC-001, ¶ 19, 130 N.M. 6, 15 P.3d 1233.

We do not believe that what the dissent proposes is what our Supreme Court intended in Johnson, and we believe that our opinion is faithful to the logic and rationale of Johnson. {12} We now turn to our concern with Johnson. Were we to analyze this case on a clean slate, we would reverse based on the reasoning set forth in our opinion in State v. Wenger, 1999-NMCA-092, 127 N.M. 625, 985 P.2d 1205, rev’d, Johnson, 2001-NMSC-001, ¶ 24, 130 N.M. 6, 15 P.3d 1233 and in the dissent written by Justice Minzner in Johnson. 2001-NMSC-001, ¶¶ 26-37.

As stated by Justice Minzner, the analysis in Wenger reconciles “almost all of what has been written by an appellate court in this state on the issues the appeal raises” and also gives “some meaning to all of the language in the relevant statutes.” Id. ¶26. With this in mind, we urge our Supreme Court to take another look at what constitutes driving while intoxicated. III. CONCLUSION {13} We agree with the district court’s holding that Defendant had actual physical control of the vehicle in these circumstances. Defendant’s conviction is affirmed. {14} IT IS SO ORDERED. I CONCUR: LYNN PICKARD, Judge. JONATHAN B.

SUTIN, Chief Judge (dissenting).