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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-036

Filing Date: June 25, 2010

Docket No. 31,092

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

DAVID MAILMAN,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI

John A. Dean, Jr., District Judge

Hugh W. Dangler, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Vicki W. Zelle, Assistant Appellate Defender

Corey J. Thompson, Assistant Appellate Defender

Santa Fe, NM

for Petitioner

Gary K. King, Attorney General

Margaret E. McLean, Assistant Attorney General

Ralph E. Trujillo, Assistant Attorney General

Santa Fe, NM

for Respondent

OPINION

BOSSON, Justice.

{1} A jury convicted Defendant David Mailman by a general verdict of driving while

intoxicated (DWI) based on alternative theories of actually driving while intoxicated or

being in actual physical control of a vehicle while intoxicated. Defendant appeals, arguing

that his conviction must be reversed because his vehicle was inoperable and, therefore, he

was not in actual physical control of it, and because there was insufficient evidence to
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convict him of actually driving while intoxicated. We hold that Defendant’s conviction, to

the extent it may have been based on actual physical control, must be overturned in light of

our recent decision in State v. Sims, 2010-NMSC-027. We also apply Sims and conclude

that the operability of a vehicle is a factor to be considered by the jury in determining

whether a defendant has the general intent to drive so as to endanger any person. The Court

of Appeals having affirmed Defendant’s conviction, we reverse and remand for a new trial.

BACKGROUND

{2} Defendant was arrested for DWI and charged pursuant to NMSA 1978, Section 66-8-

102 (2005), with a fourth or subsequent offense. At trial, Officer Dwayne Favarino testified

that on the night of December 9, 2006, he was patrolling Highway 64 in San Juan County

when he stopped to check on the Hogback Mustang, a convenience store that had

experienced a recent robbery. As Officer Favarino entered the parking lot, he observed a

Jeep Cherokee parked off by itself in the dark with its door open. As he neared the vehicle

to investigate, he saw the occupant close the door. Officer Favarino parked his cruiser, got

out, and knocked on the driver’s window. Defendant looked up at him from the driver’s seat

with a “blank stare” and then looked away, attempting to place a call from his cell phone.

Officer Favarino knocked again, and receiving no response, opened the car door to speak

with Defendant.

{3} Officer Favarino immediately observed an open can of beer on the center console and

thought that Defendant appeared “confused and disoriented.” The officer asked Defendant

to step out of his vehicle, and he complied, though he had difficulty maintaining his balance

and smelled strongly of alcohol.

{4} Officer Favarino asked if Defendant had been drinking. Defendant replied that he

had consumed a six-pack of beer and that he had thrown the other cans out of the car

window. After looking around the car for the empty cans, Officer Favarino asked Defendant

where they were. Defendant replied that he had thrown the cans out of the window along

the highway as he drove to the convenience store.

{5} Defendant then told Officer Favarino that his vehicle had broken down and asked if

the officer would arrange for a tow truck. Officer Favarino asked where Defendant’s keys

were, and Defendant replied that he had dropped them under the seat. Officer Favarino

briefly searched for the keys but could not find them. However, he recognized Defendant’s

vehicle as an older type that can sometimes be started without a key. Officer Favarino tried

to start the vehicle without the key and discovered that he was able to turn the ignition, but

the engine did not “turn over” when he did so, leading him to believe that the vehicle “had

a dead battery or something.” Prior to being placed under arrest, Defendant belligerently

refused to perform field sobriety tests. He later refused to provide a breath sample, admitting

that he was too drunk to pass the test.

{6} In its closing, the State argued to the jury that Defendant was guilty of DWI based

on either of two theories: (1) actually driving a vehicle while impaired to the slightest
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degree, based partially on Defendant’s own admissions, or (2) being in actual physical

control of a vehicle while impaired to the slightest degree. After a short deliberation, the

jury returned a general verdict of guilty without being asked to specify which theory formed

the basis for its verdict. The Court of Appeals affirmed Defendant’s conviction in a

memorandum opinion. State v. Mailman, No. 27,966, slip op. (N.M. Ct. App. Apr. 9, 2008).

We granted certiorari, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677, and consolidated

oral arguments in this case with Sims, 2010-NMSC-027, because both cases raised questions

regarding the interpretation of the actual physical control aspect of our DWI law.

DISCUSSION

Defendant’s Conviction Must Be Reversed in Light of Sims

{7} Section 66-8-102(A) provides, “[i]t is unlawful for a person who is under the

influence of intoxicating liquor to drive a vehicle within this state.” As we recently

explained in Sims, we have interpreted the word “drive” to mean either “driving a motor

vehicle,” or being “in actual physical control whether or not the vehicle is moving.” Sims,

2010-NMSC-027 at 9-10; accord UJI 14-4511 NMRA (also defining “drive” as “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” (brackets omitted)).

{8} In Sims, we clarified that actual physical control requires not only control over the

vehicle, but also a general intent to drive so as to endanger any person. Sims, 2010-NMSC027 at 20-21. We reasoned that the Legislature intended the DWI laws to apply only to

intoxicated individuals who pose an actual, not hypothetical, danger to themselves or the

public. Id. at 19-21. After Sims, “a fact finder cannot simply assume or speculate that the

individual in question might sometime in the future commence driving his or her vehicle.”

Id. at 4. Instead, because actual physical control allows for a DWI conviction without

motion of a vehicle—without actual driving—we held that proving a general intent to drive

is necessary to demonstrate that an accused poses a real danger. Id. at 19-21. We thus

overturned Sims’s DWI conviction, because the State had failed to prove his intent to drive

so as to endanger himself or the public. See id. at 4.

{9} We did not address in Sims how our holding was to apply to other cases. We take this

opportunity to clarify that our holding in Sims applies prospectively to all cases pending in

the trial court and on direct appeal as of the date that Sims was filed, June 8, 2010. See State

v. Frawley, 2007-NMSC-057, ¶ 34, 143 N.M. 7, 172 P.3d 144 (“[A] new rule . . . ‘generally

applies only to cases that are still on direct review.’” (quoting Whorton v. Bockting, 549

U.S. 406, 416 (2007)). Because this case was pending at that time, Sims applies here.

{10} In applying Sims to this case, we note the real possibility that the jury may have

convicted Defendant based on the actual physical control of his vehicle without a general

intent to drive so as to endanger himself or the public. The jury was instructed that it could

convict Defendant of DWI if it found that he either was “driving the motor vehicle” or “in
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actual physical control whether or not the vehicle [was] moving.” UJI 14-4511. No

definition of actual physical control was provided. The jury returned a general verdict of

guilty without indicating whether it was based on a finding of driving or actual physical

control.

{11} In State v. Olguin, 120 N.M. 740, 741, 906 P.2d 731, 732 (1995), we held that “due

process does not require a guilty verdict to be set aside if an alternative basis of conviction

is only factually inadequate to support a conviction.” However, “a conviction under a

general verdict must be reversed if one of the alternative bases of conviction is legally

inadequate.” Id.; see also State v. Olguin, 118 N.M. 91, 98, 879 P.2d 92, 99 (Ct. App. 1994)

(“Jurors are not generally equipped to determine whether a particular theory of conviction

submitted to them is contrary to law—whether, for example, the action in question is

protected by the Constitution, is time barred, or fails to come within the statutory definition

of the crime.” (quoting Griffin v. United States, 502 U.S. 46 (1991)) (emphasis added)),

aff’d in part and set aside in part, 120 N.M. 740, 906 P.2d 731 (1995). A conviction in the

latter situation violates due process because a jury cannot be expected to reach the correct

result when they “‘have been left the option of relying upon a legally inadequate theory.’”

Olguin, 118 N.M. at 98, 879 P.2d at 99 (quoting Griffin, 502 U.S. at 59).

{12} Thus, a conviction under a general verdict must be reversed where it is based on

more than one legal theory and at least one of those theories is legally, as opposed to

factually, invalid. Here, because the jury might have convicted Defendant of DWI based on

a theory of actual physical control without a general intent to drive so as to endanger himself

or the public, his conviction must be reversed in light of our holding in Sims.

Actual Physical Control of an Inoperable Vehicle

{13} Defendant argues that because his vehicle was inoperable when Officer Favarino

apprehended him in the parking lot, he was not in actual physical control. If we were to hold

otherwise, Defendant contends that “mere access to a disabled and inoperable vehicle,

without any analysis of the surrounding circumstances, would subject a person to a DWI

prosecution.”

{14} The State counters that State v. Tafoya, 1997-NMCA-083, 123 N.M. 665, 944 P.2d

894, forecloses Defendant’s argument. In Tafoya, a police officer discovered the defendant

asleep at the wheel of his car which had broken down in the middle of a major thoroughfare.

Id. ¶ 2. The defendant was convicted, and on appeal he argued that he could not be in actual

physical control of his vehicle because it was inoperable. Id. ¶ 3. Our Court of Appeals

rejected that argument, holding that “where Defendant was driving and his vehicle stopped,

he is still in control of the vehicle.” Id. ¶ 5.

{15} We agree that if we were to follow Tafoya, Defendant’s argument would likely fail.

However, because the parties briefed and argued this case before we decided Sims, we must

determine whether Tafoya’s reasoning retains any force in light of Sims. Clearly, it does not.

Tafoya did not address whether the defendant was actually exercising control over the
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vehicle with a general intent to drive so as to endanger anyone. See Sims, 2010-NMSC-027

at 3. Thus, because Sims renders the analysis in Tafoya obsolete, we will take a fresh look

at the issue presented in this case.

{16} The State argues that the operability of a vehicle should be irrelevant to determining

whether an individual is in actual physical control, based on the facts of State v. Harrison,

115 N.M. 73, 846 P.2d 1082 (Ct. App. 1992), cert. denied, 114 N.M. 720, 845 P.2d 814

(1993). There, the defendant’s friend offered to drive the intoxicated defendant home, but

the vehicle stalled while they were en route, and the friend was unable to start it again. Id.

He pulled the car off the road, hid the keys under the seat, and placed bricks under the front

and back tires of the vehicle. Id. He left the defendant in the car and went in search of help.

Id. at 75, 846 P.2d at 1084. Some time later, a police officer found the defendant in the same

location, passed out behind the wheel of the car with the key in the ignition and the vehicle

running, the transmission in drive, and the defendant’s foot on the brake. Id. The court held

that it could “reasonably be inferred that [the] [d]efendant 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.” Id. at 76, 846 P.2d at 1085.

{17} The State argues that, as was the defendant in Harrison, Defendant might have been

able to get his vehicle started again and embark upon “an inebriated journey without the

ability, either mentally, physically, or both, to exercise the clear judgment and steady hand

necessary to handle the vehicle with safety.” As a result, the State contends that the

operability of a vehicle should not be necessary for a DWI conviction based on actual

physical control, presumably because of the possibility that a vehicle may be inoperable one

moment and operable the next.

{18} We acknowledge that the operability of a vehicle may be difficult to determine in

some cases, but the State’s argument simply goes too far. Taken to its logical end, the State

could charge an individual with DWI for being in actual physical control of a vehicle without

wheels or without a transmission. We do not believe that the Legislature intended such an

absurd result.

{19} Instead, we agree with Defendant that the operability of a vehicle is relevant to the

actual physical control inquiry. However, we are not convinced that the inoperability of a

vehicle automatically forecloses the possibility of a DWI conviction based on actual physical

control. It is up to the jury to determine, under the standard that we articulated in Sims,

whether an accused lacked the general intent to drive so as to endanger any person, based

on the overt acts taken by the accused. While the operability of the vehicle may be highly

relevant to that determination, it is not necessarily dispositive.

{20} We leave it to the jury to weigh evidence of vehicle inoperability along with other

evidence in deciding questions of control and intent when determining whether an accused

is in actual physical control of a vehicle. We hold that the operability of a vehicle is an

additional factor to be considered by the jury in determining whether a defendant has the
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general intent to drive so as to endanger any person. See Sims, 2010-NMSC-027 at 27-28

(listing factors for the jury to consider in determining whether a defendant is in actual

physical control and has a general intent to drive so as to endanger any person). This

approach is consistent with our holding in Sims, and we believe that it will allow for a logical

enforcement of our DWI laws without extending them beyond their reasonable limits.

{21} Applied to this case, the only evidence presented at trial demonstrated that when

Defendant was apprehended, he was in a non-moving, inoperable vehicle attempting to make

a phone call. Defendant informed Officer Favarino that his car had broken down and asked

the officer to arrange to have it towed. This evidence is insufficient as a matter of law to

demonstrate that Defendant had taken an overt step toward driving with a general intent to

drive so as to endanger himself or the public. See id. at 22 (holding that a conviction based

on actual physical control requires proof of “an overt act sufficient to establish actual

physical control of the vehicle along with the general intent to drive”). As in Sims, “[i]t was

pure speculation whether [the] [d]efendant would . . . drive the vehicle.” Id. at 3. Defendant

was not in actual physical control of his vehicle. 

Prosecution of DWI Based on an Inference of Past Driving

{22} Defendant also argues that the State did not present sufficient evidence to infer that

Defendant drove while intoxicated. Specifically, Defendant argues that the State did not

provide any evidence that Defendant was the driver of the vehicle or that Defendant was

intoxicated before his vehicle broke down in the parking lot of the convenience store.

{23} We do not agree with Defendant that there was insufficient evidence for the jury to

find that he drove while impaired to the slightest degree. While the State did not introduce

any direct evidence that Defendant drove while intoxicated, it presented adequate

circumstantial evidence to lead a reasonable juror to convict Defendant of DWI. See UJI 14-

4501 NMRA (requiring jury to find that the defendant “operated a motor vehicle” and that

“[a]t the time, the defendant was under the influence of intoxicating liquor, that is, as a result

of drinking liquor the defendant was less able to the slightest degree, either mentally or

physically, or both, to exercise the clear judgment and steady hand necessary to handle a

vehicle with safety to the person and the public”).

{24} “‘[S]ubstantial evidence means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” State v. Salgado, 1999-NMSC-008, ¶ 25, 126

N.M. 691, 974 P.2d 661 (quoting State v. Baca, 1997-NMSC-059, ¶ 14, 124 N.M. 333, 950

P.2d 776). The State submitted ample evidence to lead a reasonable juror to conclude that

Defendant drove while intoxicated. Defendant’s admissions alone were sufficient for the

jury to infer his guilt. He admitted that he had consumed five cans of a six-pack of beer and

thrown them out of the window along the highway as he drove to the convenience store. He

also refused to take the field sobriety tests and the breath test, admitting that he was too

drunk to pass. Additionally, he had an open can of beer on the center console of his vehicle

when he was apprehended, and he was disoriented and confused, had bloodshot, watery eyes,

and had difficulty maintaining his balance. Substantial evidence supported Defendant’s
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conviction for past DWI.

{25} We note that prior decisions of this Court and the Court of Appeals have created

confusion by using actual physical control as an evidentiary tool for proving DWI based on

both (1) past DWI when the accused is apprehended in a vehicle that is no longer in motion,

and (2) the threat of future DWI, thereby conflating the two. Compare Boone v. State, 105

N.M. 223, 225, 731 P.2d 366, 368 (1986), and Tafoya, 1997-NMCA-083, ¶ 5, with State v.

Johnson, 2001-NMSC-001, ¶ 19, 130 N.M. 6, 15 P.3d 1233 (filed in 2000) and State v.

Sims, 2008-NMCA-017, ¶ 9, 143 N.M. 400, 176 P.3d 1132, rev’d 2010-NMSC-027 at 33.

We recently clarified in Sims that actual physical control remains a viable foundation for a

DWI conviction when coupled with proof of an overt act and a general intent to drive so as

to endanger any person. However, Sims did not address whether evidence of past DWI is

a valid basis for proving actual physical control.

{26} Even more recently, we held in City of Santa Fe v. Martinez, No. 31,785, slip op. at

11-14 (N.M. Sup. Ct. June 24, 2010), that the misdemeanor arrest rule no longer applies to

DWI arrests. With this impediment to arrest and prosecution for past DWI eliminated, we

no longer need to rely on actual physical control as a proxy for past driving. See Sims, 2010-

NMSC-027 at 11 (explaining that Boone adopted actual physical control as an alternative

definition of “drives” in our DWI statute because of “a disinclination to alter the common

law rule prohibiting warrantless misdemeanor arrests when the misdemeanor does not occur

in the presence of the arresting officer”).

{27} In this case, the prosecutor relied on actual physical control only insofar as it

implicated Defendant’s potential to drive while intoxicated in the future. Regarding

Defendant’s past driving, the prosecutor correctly recognized that he had sufficient evidence

to allow the jury to infer that Defendant actually drove while intoxicated before Officer

Favarino arrived. This approach is consistent with Sims, where we explained,

[h]ad the police officer or other witnesses observed Defendant behind the

steering wheel of a moving vehicle at or near the time of his apprehension,

the State would not have to rely on “actual physical control” to prove that

Defendant was DWI. It is only when there are no witnesses to the vehicle’s

motion that actual physical control is essential to prove DWI at the time an

accused is apprehended.

Id. at 2-3.

{28} The facts of this case compel us to take our recent holding in Sims one step further.

Actual physical control is not necessary to prove DWI unless there are no witnesses to the

vehicle’s motion and insufficient circumstantial evidence to infer that the accused actually

drove while intoxicated. Such evidence may include the accused’s own admissions, the

location of the vehicle next to the highway, or any other similar evidence that tends to prove

that the accused drove while intoxicated. Accordingly, although we reverse Defendant’s

conviction on due process grounds and hold that he was not in actual physical control of his
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vehicle as a matter of law, we remand this case for a new trial based solely on whether

Defendant actually drove while intoxicated.

CONCLUSION

{29} We reverse the Court of Appeals and remand to the district court for a new trial

consistent with this Opinion.

{30} IT IS SO ORDERED.

____________________________________

RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________

CHARLES W. DANIELS, Chief Justice

____________________________________

PATRICIO M. SERNA, Justice

____________________________________

PETRA JIMENEZ MAES, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Mailman, Docket No. 31,549

AE APPEAL AND ERROR

AE-SB Substantial or Sufficient Evidence

CT CONSTITUTIONAL LAW

CT-DP Due Process

CL CRIMINAL LAW

CL-DG Driving While Intoxicated