IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-056

Filing Date: May 11, 2010

Docket No. 28,900

STATE OF NEW MEXICO, 

Plaintiff-Appellee, 

v.

MARK O. REGER, 

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

Thomas A. Rutledge, District Judge

Gary K. King, Attorney General 

Santa Fe, NM

Ralph E. Trujillo, Assistant Attorney General 

Albuquerque, NM

for Appellee

J. Robert Beauvais, P.A.

J. Robert Beauvais

Ruidoso, NM

for Appellant

OPINION

BUSTAMANTE, Judge.

{1} Defendant Mark Reger appeals his convictions for aggravated driving while under

the influence of intoxicating liquor (DWI), and driving while license suspended or revoked.

The factual setting of Defendant’s case requires us to consider whether a police officer may

properly arrest an intoxicated driver standing outside his vehicle when the officer has not

observed him driving. We conclude that the misdemeanor arrest rule is satisfied where the

officer may reasonably infer from the direct and circumstantial evidence that the driver is

intoxicated and has recently been in actual physical control of the vehicle. We affirm the

district court.
1

The judgment and sentence states that Defendant pleaded guilty, but the district

court’s approval of plea proceeding, the clerk’s minutes of the plea and sentence hearing,

and the docketing statement state that he pleaded no contest.

BACKGROUND

{2} Defendant’s motion to suppress evidence resulting from his arrest adopted the facts

as reported by the arresting officer, Sergeant Ricardo Huerta of the Artesia police

department. At the hearing on the motion, both Defendant and the State stipulated to

Sergeant Huerta’s testimony. Thus, the following facts are not in dispute. On August 23,

2007, Sergeant Huerta responded to a report of a possible drunk driver who had parked his

truck on private property at an auto dealership in Artesia, New Mexico. Arriving at the

location, Sergeant Huerta encountered Defendant standing outside of his truck, which was

parked with the hood open and the engine off. Defendant told the officer he had stopped

because someone had told him one of his lights was out. The officer noticed that Defendant

was slurring his speech, was unsteady on his feet, and had an odor of alcohol on his breath.

The officer administered field sobriety tests and based on his observations placed Defendant

under arrest for DWI. 

{3} Defendant ultimately pleaded guilty1

 to aggravated DWI and driving while license

suspended or revoked, reserving the right to appeal the district court’s denial of his motion

to suppress evidence resulting from his arrest. 

STANDARD OF REVIEW

{4} “In reviewing a trial court’s denial of a motion to suppress, we observe the

distinction between factual determinations which are subject to a substantial evidence

standard of review and application of law to the facts, which is subject to de novo review.”

State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (alteration omitted)

(internal quotation marks and citation omitted). “We view the facts in the light most

favorable to the [s]tate as the prevailing party, indulging all reasonable inferences in support

of the district court’s ruling and disregarding all evidence and inferences to the contrary.”

State v. Pacheco, 2008-NMCA-131, ¶ 3, 145 N.M. 40, 193 P.3d 587.

DISCUSSION

{5} Defendant argues that his arrest for DWI was improper because he was not in “actual

physical control” of his truck when Sergeant Huerta encountered him, nor had Sergeant

Huerta observed him driving. New Mexico statutes provide that “[i]t is unlawful for a

person who is under the influence of intoxicating liquor to drive a vehicle within this state.”

NMSA 1978, § 66-8-102(A) (2007) (amended 2008). “‘[D]river’ means every person who

drives or is in actual physical control of a motor vehicle.” NMSA 1978, § 66-1-4.4(K)

(2007). A person is in actual physical control when “he or she exercises direct influence

over the vehicle.” State v. Johnson, 2001-NMSC-001, ¶ 19, 130 N.M. 6, 15 P.3d 1233 (filed
2

2000). “[M]otion of the vehicle is not a necessary element of [DWI].” Boone v. State, 105

N.M. 223, 226, 731 P.2d 366, 369 (1986). “[T]he clear purpose of the ‘actual physical

control’ element of the DWI statute 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.” Johnson, 2001-NMSC-001, ¶ 19. “[T]he [s]tate

may charge a person with DWI pursuant to Section 66-8-102, despite the fact that the

defendant is found on private property in actual physical control of a non-moving vehicle.”

Johnson, 2001-NMSC-001, ¶ 24.

{6} “What constitutes actual physical control has been decided based on the facts of a

particular case.” State v. Sims, 2008-NMCA-017, ¶ 7, 143 N.M. 400, 176 P.3d 1132 (filed

2007), cert. granted, 2008-NMCERT-001, 143 N.M. 399, 176 P.3d 1131. In Sims, we

affirmed the conviction of a driver found passed out or asleep behind the steering wheel of

a vehicle with the engine off and the key on the passenger seat. Other New Mexico cases

that have found actual physical control or driving include Boone, 105 N.M. at 226-27, 731

P.2d at 369-70 (defendant stopped in a traffic lane at night with the automobile’s engine

running but its lights off); State v. Rivera, 1997-NMCA-102, ¶¶ 2-3, 124 N.M. 211, 947 P.2d

168 (defendant asleep or unconscious at the wheel of his car in his front yard with the engine

racing); State v. Tafoya, 1997-NMCA-083, ¶¶ 2, 5, 123 N.M. 665, 944 P.2d 894 (defendant

found sleeping behind the wheel of an inoperable vehicle with the engine off but the key in

the ignition in the on position); State v. Harrison, 115 N.M. 73, 74, 75-76, 846 P.2d 1082,

1083, 1084-85 (Ct. App. 1992) (defendant found unconscious or asleep in driver’s seat with

engine running but wheels blocked). 

{7} Our language in Sims suggests that the factual setting of that case approaches the

outer limits of circumstances that may be considered actual physical control. Addressing the

dissent, this Court prefaced its comments by stating: “Although we have concerns with

conduct of this nature rising to the level of DWI . . . .” Sims, 2008-NMCA-017, ¶ 11.

Noting the New Mexico Supreme Court’s holding in Johnson, that “the [actual physical

control] test is satisfied by a person passed out in the driver’s seat with the key in the

ignition,” we reasoned that distinguishing Sims on the basis that the key was a short distance

from the ignition would not be “supported by any coherent rationale, other than a desire to

draw a line somewhere.” Sims, 2008-NMCA-017, ¶ 11. 

{8} Without purporting to draw a bright line, we conclude for several reasons that in the

circumstances of the present case Defendant was not in actual physical control of his vehicle

at the time Sergeant Huerta encountered him. A person standing outside a vehicle with the

hood up is not “in a situation in which they can directly commence operating a vehicle,” nor

is the person “exercis[ing] direct influence over the vehicle.” Johnson, 2001-NMSC-001,

¶ 19. Most obviously, the person is physically separated from and out of reach of the

ignition, steering wheel, gearshift, and pedals. In Defendant’s case, operating the vehicle

would require the additional step of closing the hood. We further observe that there are

many circumstances in which an intoxicated person might be standing outside a vehicle

where no supportable inference can be made that the person is likely to get in and drive

away. However, where a person is in the driver’s seat within reach of the keys, such an

inference is more reasonable.
3

{9} New Mexico cases discuss the concept of actual physical control in terms of ability

to “directly commence operating a vehicle,” not having driven the vehicle in the recent past.

Id. Thus, the question of whether a person is in actual physical control of a vehicle when the

officer encounters him or her is analytically distinct from any inference that the person has

recently been driving while intoxicated. If a person is found to be in actual physical control,

he or she is viewed as currently driving for purposes of the DWI law. If a person is found

not to be in actual physical control, he or she is not viewed as currently driving, but the

possibility remains that the person recently drove. In Sims, the question of whether the

defendant had recently driven was specifically not at issue. This Court observed, “[t]here

is no evidence regarding how [d]efendant’s vehicle came to be in the commercial parking

lot. The only issue before us relates to [d]efendant’s ability to drive away from that lot.”

Sims, 2008-NMCA-017, ¶ 9. 

{10} The State cites several cases affirming convictions where the intoxicated driver was

encountered outside his vehicle, and the investigating officer did not observe any driving.

Three of these cases tend to blur the distinction between current actual physical control and

circumstantial evidence that the person had been driving earlier. As discussed below, failure

to make a distinction between these two concepts raises a question as to whether the

misdemeanor arrest rule has been violated. In Azbill v. State, 685 S.W.2d 162, 163-64 (Ark.

1985), the investigating officer encountered the intoxicated defendant standing alone outside

his truck, which was stuck in the highway median. The court held that actual physical

control could be proved by circumstantial evidence and that the officer need not have seen

the driver operating the vehicle in order to have reasonable cause to believe he was doing

so. Id. at 164. The court distinguished the facts before it from those of Dowell v. State, 671

S.W.2d 740 (Ark. 1984), in which the defendant was found parked in a business driveway,

asleep, with the engine off, and the keys on the seat. Azbill, 685 S.W.2d at 163. The Dowell

court declined to find that the defendant was in actual physical control when found and ruled

the evidence insufficient because the defendant might not have been the person who drove

to the parking spot or he might have become intoxicated after parking. Id.; Dowell, 671

S.W.2d at 740-41.

{11} In In re Welfare of R.A.D., 370 N.W.2d 469, 470-71 (Minn. Ct. App. 1985), the

intoxicated juvenile was found standing outside his car, which had crashed into another car.

Although he admitted to being the driver, he argued that he was not driving or in physical

control of it when the officer arrived and there was no showing that the engine was running

or that the keys were in the ignition. Id. at 471. The court held that substantial evidence,

including the juvenile’s admission, supported the conclusion that he was driving. Id.

{12} In State v. Stevens, 580 A.2d 493, 495 (Vt. 1990), the intoxicated driver was found

stopped on an exit ramp, kicking snow out from under the tires of his car, which was

running. Affirming his conviction, the court held, “[u]nder the circumstances, it was

reasonable for the jury to conclude that defendant had driven the vehicle into the snowbank

and remained in physical control of the car.” Id.

{13} In New Mexico, the question of whether circumstantial evidence of driving is

sufficient where the officer has not observed the intoxicated driver in actual physical control
4

of the vehicle implicates the misdemeanor arrest rule. The rule provides that “[g]enerally,

in New Mexico, an officer may execute a warrantless misdemeanor arrest only if the offense

was committed in the officer’s presence.” City of Las Cruces v. Sanchez, 2009-NMSC-026,

¶ 11, 146 N.M. 315, 210 P.3d 212. “[A] crime is committed in the presence of an officer

when the facts and circumstances occurring within his observation, in connection with what,

under the circumstances, may be considered as common knowledge, give him probable cause

to believe or reasonable grounds to suspect that such is the case.” State v. Ochoa, 2008-

NMSC-023, ¶ 11, 143 N.M. 749, 182 P.3d 130 (internal quotation marks and citation

omitted). As codified in the Motor Vehicle Code, the rule provides as follows:

A. Members of the New Mexico state police, sheriffs and their

salaried deputies and members of any municipal police force, may arrest

without warrant any person: 

(1) present at the scene of a motor vehicle accident;

(2) on a highway when charged with theft of a motor

vehicle; or 

(3) charged with crime in another jurisdiction, upon

receipt of a message giving the name or a reasonably accurate description of

the person wanted, the crime alleged and a statement he is likely to flee the

jurisdiction of the state. 

B. To arrest without warrant, the arresting officer must have

reasonable grounds, based on personal investigation which may include

information from eyewitnesses, to believe the person arrested has committed

a crime.

NMSA 1978, § 66-8-125 (1978).

{14} Our Supreme Court has at least implied that an officer may make an arrest based on

the surrounding circumstances even though he has not seen the person driving. In State v.

Gomez, 2003-NMSC-012, ¶ 2, 133 N.M. 763, 70 P.3d 753, the defendant was found asleep

with his feet sticking out the open driver’s door and the keys in his pocket. The defendant

moved to dismiss on grounds that there was no indication that he had operated a vehicle. Id.

¶ 3. The Supreme Court held that the defendant’s motion to dismiss could not be decided

without a trial on the merits, as there existed a question, not only whether the defendant was

in actual physical control when the officers found him, but also a factual question—for

which the state might have had additional evidence not yet disclosed—whether the officers

could make a reasonable inference that he drove to the parking lot while intoxicated. Id. ¶¶

8-10. This result suggests that the analysis in this type of case may involve not only whether

the intoxicated driver’s position relative to the keys and driver’s seat and other factors

amount to actual physical control, but also whether the officer has reason to believe the

person drove to the spot where he is found. 
5

{15} The facts of State v. Greyeyes, 105 N.M. 549, 734 P.2d 789 (Ct. App. 1987),

resemble those of the present case. The intoxicated defendant, who admitted he had been

driving, was found standing outside a pickup truck that was suspended on a guardrail. Id.

at 550, 734 P.2d at 790. The significant difference between Greyeyes and the present case

is that Greyeyes involved a motor vehicle accident and the present case does not. This

Court, however, did not rely on the scene-of-the-accident exception in the misdemeanor

arrest rule at Section 66-8-125(A)(1), although it apparently would have been appropriate

to do so, as a vehicle suspended on a guardrail is almost certainly “the scene of a motor

vehicle accident.” See Greyeyes, 105 N.M. at 550, 734 P.2d at 790. The defendant argued

that the officer had not observed him committing a misdemeanor. Greyeyes, 105 N.M. at

551, 734 P.2d at 791. We first pointed out that “[t]he purpose of the ‘in presence’

requirement is to prevent warrantless arrests based on information from third parties.” Id.

at 552, 734 P.2d at 792. Where the necessary information comes from the defendant himself

by admission, the danger that the arrest will be based on false information is virtually

nonexistent. In Greyeyes, we then considered the surrounding circumstances:

[The d]efendant was in possession of his vehicle, admitted that he was the

owner, had been drinking, and had driven the vehicle into the railing. These

facts, coupled with the additional facts that defendant smelled of alcohol and

failed field sobriety tests administered by the officer, were sufficient to make

defendant’s arrest valid. 

Id. We stated, “[a]lthough it is uncontested . . . that [the officer] did not personally see the

defendant drink alcohol or actually operate his pickup truck, nevertheless, the ‘in presence’

requirement was satisfied here.” Id. at 551-52, 734 P.2d at 791-92.

{16} We conclude that the Greyeyes analysis is appropriate in cases such as the present

one where an intoxicated person is encountered outside a vehicle. In these circumstances,

the officer’s personal perceptions include observation of the circumstances surrounding the

presence of the defendant and the vehicle, observation and smells evidencing the defendant’s

intoxication, and hearing what the defendant and others say. What the officer perceives

supplies sufficient “facts and circumstances occurring within [the officer’s] presence in

connection with what, under the circumstances, may be considered common knowledge, [to]

give [the officer] probable cause to believe or reasonable grounds to suspect that a crime has

occurred.” Ochoa, 2008-NMSC-023, ¶ 11 (internal quotation marks and citation omitted);

see, e.g., Bayse v. State, 420 So. 2d 1050, 1053 (Miss. 1982) (holding that the presence

requirement was met where the officer personally observed the bodies at the scene of a hitand-run accident, gained information from various witnesses that the defendant’s car was

involved in the accident, and the defendant confessed that he was involved). 

{17} We see no point in ignoring the obvious in cases where overly technical application

of the misdemeanor arrest rule could supply a tiny crack for the case to fall into. We note,

for example, that disallowing a warrantless arrest under the present circumstances could

potentially place a burden on the officer to monitor the intoxicated person for the next

several hours to ensure that he does not drive away while in that condition.
6

{18} Applying the above principles, we first decline to extend the meaning of “actual

physical control” to include the circumstances in which the officer encountered Defendant.

Defendant was, however, in possession of his truck and acknowledged that he had parked

it—i.e., driven it and brought it to a stop—to check if a light was out. He showed signs of

being under the influence of alcohol and admitted drinking. We conclude that these

circumstances satisfied the requirement that the offense be committed in the officer’s

presence.

CONCLUSION

{19} Although Defendant was not in actual physical control of his truck when Sergeant

Huerta encountered him, the facts and circumstances occurring within the officer’s

observation at the time of Defendant’s arrest satisfied the misdemeanor arrest rule and

provided probable cause. The district court properly denied Defendant’s motion to suppress

evidence resulting from his arrest. We therefore affirm Defendant’s convictions. 

{20} IT IS SO ORDERED.

____________________________________

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________

JONATHAN B. SUTIN, Judge

____________________________________

TIMOTHY L. GARCIA, Judge

Topic Index for State v. Reger, Docket No. 28,900

CL CRIMINAL LAW

CL-DG Driving While Intoxicated

CL-MS Misdemeanor

CA CRIMINAL PROCEDURE

CA-MD Misdemeanor Arrest Rule