{
  "id": 142192,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Dionisio A. TAFOYA, Defendant-Appellant",
  "name_abbreviation": "State v. Tafoya",
  "decision_date": "1997-06-18",
  "docket_number": "No. 18306",
  "first_page": "665",
  "last_page": "666",
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      "cite": "944 P.2d 894"
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      "cite": "1997-NMCA-083"
    }
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  "court": {
    "name_abbreviation": "N.M. Ct. App.",
    "id": 9025,
    "name": "Court of Appeals of New Mexico"
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    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
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      "year": 1986,
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          "page": "226",
          "parenthetical": "defendant sitting in the driver's seat with the engine running parked in a traffic lane"
        },
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          "page": "369",
          "parenthetical": "defendant sitting in the driver's seat with the engine running parked in a traffic lane"
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  "last_updated": "2023-07-14T16:56:16.892471+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "DONNELLY and BOSSON, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Dionisio A. TAFOYA, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nARMIJO, Judge.\n1. Defendant appeals his conviction of driving while intoxicated, first offense. Our calendar notice proposed summary affirmance. Defendant has timely responded with a memorandum in opposition. Not persuaded by his arguments, we affirm.\n2. An officer responding to a call regarding a vehicle parked diagonally in the right-hand lane of Isleta Boulevard in Albuquerque, New Mexico found Defendant asleep at the wheel. The key was in the ignition of the vehicle in the \u201con\u201d position, but the engine was not running. Defendant, responding to the officer\u2019s questions, told him that the car had broken down. Defendant had been driving it on his way home when it broke down. There is no question that Defendant was intoxicated. Further, there is no question that the vehicle was inoperable at the time the officer approached Defendant. The question is whether Defendant was \u201cdriving\u201d as that term is construed in the DWI statute.\n3. It is well-settled in New Mexico that motion of the vehicle is not required to support a conviction for DWI. Boone v. State, 105 N.M. 223, 226, 731 P.2d 366, 369 (1986) (defendant sitting in the driver\u2019s seat with the engine running parked in a traffic lane); State v. Harrison, 115 N.M. 73, 76, 846 P.2d 1082, 1085 (Ct.App.1992) (defendant slumped over steering wheel of vehicle parked ten feet from curb in traffic lane with keys in ignition, engine running, and foot on the brake). Here, Defendant argues that because the vehicle was inoperable, he was not driving or in control of the vehicle. He relies on out-of-state authority for his claim that the inoperability of the vehicle can be a defense. See Jones v. State, 510 So.2d 1147 (Fla.Dist.Ct.App.1987). We are not persuaded that we should rely on out-of-state authority when the elements of the crime are different.\n4.Defendant also argues that the newly enacted jury instruction for DWI, NMUJI 14-4511,1997 Advance Annotation and Rules Service (Apr.1997), supports his argument. He contends that because the new jury instruction uses the word \u201coperate\u201d instead of \u201cdrive,\u201d the operability of the vehicle is a factor to be considered. We disagree. As defined in NMUJI 14-4511, the term \u201coperating\u201d is synonymous with the term \u201cdriving.\u201d The language of this instruction is patterned upon the definition of \u201cdriver\u201d as set out in the Motor Vehicle Code. See NMSA 1978, \u00a7 66-l-4.4(K) (Repl. Pamp.1994). The latter section defines \u201cdriver\u201d to mean\nevery person who drives or is in actual physical control of a motor vehicle, including a motorcycle, upon a highway, who is exercising control over or steering a vehicle being towed by a motor vehicle or who operates or is in actual physical control of an off-highway motor vehiclef.] [Emphasis added.]\nAs the committee commentary notes, operating a motor vehicle can include a number of situations including driving, control over a vehicle being towed, or control of a vehicle on a street even if the person is asleep and not actually driving.\n5. Under the facts of the case here where Defendant was driving and his vehicle stopped, he is still in control of the vehicle and it is on the road. Thus, even though he can no longer drive it, he is \u201cin actual physical control whether or not the vehicle is moving if the vehicle is on a highway.\u201d NMUJI 14-4511, second alternative. There was no evidence that Defendant pulled over and parked his vehicle. It simply stopped running in the roadway. Defendant remained in control of it.\n6. For the reasons stated herein and in the calendar notice, Defendant was driving while intoxicated. The judgment and sentence of the district court are affirmed.\n7. IT IS SO ORDERED.\nDONNELLY and BOSSON, JJ., concur.",
        "type": "majority",
        "author": "ARMIJO, Judge."
      }
    ],
    "attorneys": [
      "Tom Udall, Attorney General, Santa Fe, for Appellee.",
      "T. Glenn Ellington, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Appellant."
    ],
    "corrections": "",
    "head_matter": "1997-NMCA-083\n944 P.2d 894\nSTATE of New Mexico, Plaintiff-Appellee, v. Dionisio A. TAFOYA, Defendant-Appellant.\nNo. 18306.\nCourt of Appeals of New Mexico.\nJune 18, 1997.\nCertiorari Denied Aug. 15, 1997.\nTom Udall, Attorney General, Santa Fe, for Appellee.\nT. Glenn Ellington, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Appellant."
  },
  "file_name": "0665-01",
  "first_page_order": 709,
  "last_page_order": 710
}