dissent">SUTIN, Chief Judge

(dissenting).

{15} I respectfully dissent. I respectfully suggest that the Supreme Court take another look at State v. Johnson, 2001-NMSC-001, 130 N.M. 6, 15 P.3d 1233. At this point, at the very least, based on the language the Legislature placed in the DWI statutes, Johnson should not be applied to permit conviction of Defendant in the present case. Broadening Johnson’s reach should be accomplished, if at all, through amended legislation.

{16} A “ ‘driver’ ” is a “person who drives” or is “in actual physical control of a motor vehicle.” NMSA 1978, § 66-l-4.4(K) (1999) (amended 2007); Johnson, 2001-NMSC-001, ¶ 11, 130 N.M. 6, 15 P.3d 1233. Johnson addressed two circumstances in which vehicles were on private property. In one, the driver was sitting in the driver’s seat with the key in the ignition and the engine running. Id. ¶3. In the other, the defendant was also seated in the driver’s seat with the key in the ignition, but the engine was not running. Id. ¶ 2. Johnson held that the driver in each circumstance was properly convicted of DWI, stating that “the State may charge a person who is in actual physical control of a non-moving vehicle with DWI despite the fact that he or she is on private property.” Id. ¶¶ 1, 24.

{17} In support of its determination that a violation of the DWI statute can occur on private property, as well as public property, our Supreme Court in Johnson stated that the purpose of the words “‘actual physical control’ ” 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.” Id. ¶ 19. The Court reinstated the charges of DWI based on that deterrence policy and on the further determination that a person in actual physical control of a vehicle is a danger to society because of the potential that the person could drive the vehicle. See id. ¶¶ 17, 19, 24.

{18} The Johnson Court defined the statutory words, “ ‘actual physical control,’ ” by a driver to mean a person who “exercises direct influence over the vehicle.” Id. ¶ 19. The Court did not define what “exercises direct influence” means. “Direct,” among other things, means “proceeding from one point to another in time or space without deviation or interruption,” and “proceeding by the shortest way.” Webster’s New Collegiate Dictionary 323 (1975); see Webster’s II New College Dictionary 321 (1995) (defining “direct” to mean “[t]o take authoritative charge of’). “Influence” means “the act or power of producing an effect without apparent exertion of force or direct exercise of command.” Webster’s New Collegiate Dictionary 592; see Webster’s II New College Dictionary 569 (1995) (defining “influence” as “[a] power indirectly or intangibly affecting a person or event”). I question whether the reader’s understanding of “actual physical control” is enhanced by the definition “exercises direct influence.” Ambiguity sets in, given that “direct” seems to connote producing an effect with “exertion of force or direct exercise of command,” while “influence” connotes the opposite.

{19} The driver in Johnson who was sitting in the driver’s seat with the key in the ignition and engine running can arguably be characterized as a person who was in actual physical control of the vehicle, despite the fact that the vehicle was not moving at the time. That driver could have directly and immediately driven the vehicle. The driver who was sitting in the driver’s seat with the key in the ignition but without the engine running could also arguably be characterized as a person who was in actual physical control of the vehicle. That driver could directly and immediately, with the key already in place, have turned the engine on and have driven the vehicle. I interpret the Johnson Court’s definition of a person who “exercises direct influence” to mean a person who is in a position to get the vehicle running and moving almost instantly. If that is not how “exercises direct influence” is to be defined, then that is how it should be defined. Still, even with this more appropriate way of looking at “actual physical control,” it does not answer the question of where to stop incremental broadening of the language in the DWI statute.

{20} While Johnson’s general policy statements can, arguably, support the conclusion that Defendant in the present case is properly charged with DWI, I think Johnson’s application should be limited. At this point, any extension beyond circumstances where a person is in a position, directly and immediately, to get the vehicle running and moving, should be the subject of legislation, not judicial extension.

{21} Courts are often loathe to discuss hypotheticals. We handle cases on their peculiar and particular facts, governed by fairly broad legal principles. But here, the present case, with Johnson as its “precedent,” appears to me to create nigh onto a circumstance akin to strict liability for any intoxicated person who is in a position, within a reasonably short space and time, to put the key in the ignition of a vehicle. I see little difference between Defendant’s circumstance and that of a person who is asleep in the backseat of a vehicle with the key in his or her pocket. I see little difference between Defendant and a person outside the vehicle with the key in his or her pocket, even if the person is sitting in another’s vehicle close by, is passed out on the ground next to his or her own vehicle, or has just left a restaurant or private home and is heading for a vehicle with the key in his or her pocket or hand. I see little difference between Defendant and an intoxicated person who remains in a vehicle and is given possession of the key while his or her spouse, who was driving the vehicle, is required to walk a block to get gas because their vehicle has run out of gas.

{22} Johnson’s policy statements relating to deterrence and danger are based on potentiality, not actuality. There are a myriad of circumstances in which an intoxicated person is potentially able, to use Johnson’s language, to “exercise direct influence” over a vehicle such that the person can get the vehicle running and moving. I tend to doubt that the Legislature had in mind convictions under all of the circumstances. We should not overlook the fact that the Legislature used the words “actual physical control.” The word “actual” means “existing in act and not merely potentially.” Webster’s New Collegiate Dictionary 12 (1975); see Webster’s II New College Dictionary 12 (1995) (defining “actual” as “[e]xisting in fact or reality” and “[e]xisting or acting at the present moment”). One source sets out “existent-contrasted with potential and possible” as a synonymous cross-reference to “actual.” Webster’s Third New International Dictionary 22 (1976). “Actual” arguably covers sitting in the driver’s seat with the key in the ignition. But I have difficulty seeing how it covers passed out or asleep in the front seat with the key on the passenger’s seat, or how it covers sitting, passed out, or asleep in the passenger’s seat. Almost anything but a person in the driver’s seat with the key in the ignition or in the process of placing the key in the ignition is a potential, not actual, act of “physical control.”

{23} Without legislative amendment to the DWI statute, we should not extend criminal liability to the facts in the present case. Where the vehicle is on private property, and no evidence is presented sufficient to prove that the person charged was driving the vehicle while intoxicated, criminal liability under the present DWI statute should be limited to instances in which the defendant is in a position, directly and immediately, to instantly get the vehicle running and moving. If criminal liability is to be extended beyond those circumstances, I think the Legislature ought to have the first crack at broadening the coverage of the crime.

Citation profile

Relationships

How this case has been treated — in progress