{ "id": 4247077, "name": "STATE of New Mexico, Plaintiff-Respondent, v. Mark SIMS, Defendant-Petitioner", "name_abbreviation": "State v. Sims", "decision_date": "2010-06-08", "docket_number": "No. 30,827", "first_page": "330", "last_page": "342", "citations": [ { "type": "official", "cite": "148 N.M. 330" }, { "type": "parallel", "cite": "2010-NMSC-027" }, { "type": "parallel", "cite": "236 P.3d 642" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1996-NMSC-073", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322297 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0724-01" ] }, { "cite": "1997-NMCA-102", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17318 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0211-01" ] }, { "cite": "221 Ariz. 49", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 4046157 ], "weight": 3, "year": 2009, "pin_cites": [ { "parenthetical": "en banc" }, { "page": "634", "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/ariz/221/0049-01" ] }, { "cite": "1999-NMCA-092", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257723 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6 2" }, { "page": "\u00b6\u00b6 4, 18" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0625-01" ] }, { "cite": "91 N.M. 559", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571139 ], "weight": 2, "pin_cites": [ { "page": "560" }, { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0559-01" ] }, { "cite": "331 Md. 199", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2019364 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "noting that the view among many states is that the purpose of the \"actual physical control\" language in DWI provisions is preventive, aimed to protect the public from what inebriated individuals \"might\" do (internal quotation marks and citation omitted)" }, { "page": "1025", "parenthetical": "noting that the view among many states is that the purpose of the \"actual physical control\" language in DWI provisions is preventive, aimed to protect the public from what inebriated individuals \"might\" do (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/md/331/0199-01" ] }, { "cite": "351 N.E.2d 85", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "87", "parenthetical": "\"The clear purpose of the control aspect of the instant ordinance is to deter persons from being found under circumstances in which they can directly commence operating a vehicle while they are under the influence of alcohol or particular drugs.\"" }, { "page": "86", "parenthetical": "\" 'No person who is under the influence of alcohol or a drug of abuse ... shall operate or be in actual physical control of any vehicle within this city.' \" (citation omitted)" }, { "page": "87" } ], "opinion_index": 0 }, { "cite": "47 Ohio St.2d 94", "category": "reporters:state", "reporter": "Ohio St. 2d", "case_ids": [ 1798881 ], "year": 1976, "pin_cites": [ { "parenthetical": "\"The clear purpose of the control aspect of the instant ordinance is to deter persons from being found under circumstances in which they can directly commence operating a vehicle while they are under the influence of alcohol or particular drugs.\"" } ], "opinion_index": 0, "case_paths": [ "/ohio-st-2d/47/0094-01" ] }, { "cite": "115 N.M. 73", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725389 ], "weight": 25, "pin_cites": [ { "page": "74" }, { "page": "1083" }, { "page": "74-75" }, { "page": "1083-84" }, { "page": "75" }, { "page": "1084" }, { "page": "76" }, { "page": "1085" }, { "parenthetical": "emphasis added" }, { "page": "76" }, { "page": "1085" }, { "page": "77" }, { "page": "1086" }, { "page": "78" }, { "page": "1087" }, { "page": "77, 78" }, { "page": "1086, 1087" }, { "page": "75" }, { "page": "1084" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0073-01" ] }, { "cite": "99 N.M. 389", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584602 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "390-91", "parenthetical": "holding that dicta is language unnecessary to the decision of the issues before the court and is not binding as a rule of law" }, { "page": "1117-18", "parenthetical": "holding that dicta is language unnecessary to the decision of the issues before the court and is not binding as a rule of law" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0389-01" ] }, { "cite": "93 N.M. 773", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568803 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "777", "parenthetical": "\"A warrantless arrest of a person for violation of a misdemeanor is valid only if the offense occurred in the arresting officer's presence.\"" }, { "page": "187", "parenthetical": "\"A warrantless arrest of a person for violation of a misdemeanor is valid only if the offense occurred in the arresting officer's presence.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0773-01" ] }, { "cite": "327 A.2d 375", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "383", "parenthetical": "using \"operator\" and \"operation\" to apply to verb \"operate\"" }, { "page": "383", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "230 Pa.Super. 563", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 814687 ], "weight": 2, "year": 1974, "pin_cites": [ { "parenthetical": "using \"operator\" and \"operation\" to apply to verb \"operate\"" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/pa-super/230/0563-01" ] }, { "cite": "105 N.M. 223", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598904 ], "weight": 28, "year": 1986, "pin_cites": [ { "page": "225" }, { "page": "368" }, { "page": "225-26" }, { "page": "368-69" }, { "page": "225" }, { "page": "368", "parenthetical": "citation omitted" }, { "page": "225" }, { "page": "368" }, { "page": "226" }, { "page": "369" }, { "page": "226" }, { "page": "369" }, { "page": "224" }, { "page": "367" }, { "page": "226" }, { "page": "369" }, { "page": "228" }, { "page": "371", "parenthetical": "Walters, J., and Sosa, J., dissenting" }, { "page": "226-27" }, { "page": "369-70" }, { "page": "225" }, { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0223-01" ] }, { "cite": "176 P.3d 1131", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "143 N.M. 399", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2008-NMCERT-001", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2008-NMCA-017", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3783806 ], "weight": 18, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6\u00b6 12, 15" }, { "page": "\u00b6 10" }, { "page": "\u00b6 8" }, { "page": "\u00b6 12" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0400-01" ] }, { "cite": "2001-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352596 ], "weight": 52, "year": 2000, "pin_cites": [ { "page": "\u00b6\u00b6 1, 19" }, { "page": "\u00b6\u00b6 6, 17" }, { "page": "\u00b6\u00b6 34-36" }, { "page": "\u00b6 19" }, { "page": "\u00b6 17" }, { "page": "\u00b6 19" }, { "page": "\u00b6 19" }, { "page": "\u00b6 34" }, { "page": "\u00b6 17" }, { "page": "\u00b6 17" }, { "page": "\u00b6 24" }, { "page": "\u00b6 19" }, { "page": "\u00b6 19" }, { "page": "\u00b6\u00b6 4, 24" }, { "page": "\u00b6 1" }, { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0006-01" ] } ], "analysis": { "cardinality": 1443, "char_count": 47737, "ocr_confidence": 0.699, "pagerank": { "raw": 1.4097992568703912e-07, "percentile": 0.6467473586297888 }, "sha256": "3eee9463e0fdddd4179b091954544244d88ddee437b3d9cb1761a38c7a98f7cf", "simhash": "1:0c2d88de7080a567", "word_count": 7860 }, "last_updated": "2023-07-14T17:58:33.542282+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CHARLES W. DANIELS, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and RICHARD C. BOSSON, Justices." ], "parties": [ "STATE of New Mexico, Plaintiff-Respondent, v. Mark SIMS, Defendant-Petitioner." ], "opinions": [ { "text": "OPINION\nCH\u00c1VEZ, Justice.\n{1} A police officer found Defendant passed out or asleep behind the wheel of his vehicle located in a commercial parking lot. The keys were on the front passenger seat of the vehicle. While awakening Defendant, the officer detected a strong odor of alcohol and observed that Defendant had bloodshot, watery eyes. Defendant admitted to drinking alcohol, failed field sobriety tests, and submitted to two breath tests, the results of which were .19 and .18 respectively. Defendant was charged with driving while intoxicated (DWI), contrary to NMSA 1978, Section 66-8-102 (1953, as amended through 2004).\n{2} Defendant moved to dismiss the charge, contending that he was not in actual physical control of the vehicle since the keys were not in the ignition. On these stipulated facts, the metropolitan court ruled at trial that Defendant was in actual physical control of the vehicle because if he roused himself, he could easily put the vehicle in motion. Defendant subsequently pled guilty to one count of driving while intoxicated, reserving the right to appeal the metropolitan court\u2019s ruling that he was in actual physical control of his vehicle to the district court. On appeal, the district court affirmed the metropolitan court\u2019s finding that Defendant was in actual physical control because he had possession of the keys and could have directly started the car. The district court\u2019s ruling was then appealed to the Court of Appeals. A majority of the Court of Appeals, relying on State v. Johnson, 2001-NMSC-001, \u00b6\u00b6 1, 19, 130 N.M. 6, 15 P.3d 1233 (filed in 2000), affirmed the district court\u2019s finding that Defendant was in actual physical control because \u201cthere was nothing to prevent Defendant from awakening, reaching for the keys, and driving from the parking lot.\u201d State v. Sims, 2008-NMCA-017, \u00b6 9, 143 N.M. 400, 176 P.3d 1132. The dissent would have reversed the trial court because \u201cactual\u201d physical control should require more than potential or possible physical control and any expansion of the law should be for the Legislature to enact. Id. \u00b6\u00b6 20-22 (Sutin, C.J., dissenting). In any event, both the majority and the dissenting judges urged this Court to reconsider Johnson. Sims, 2008-NMCA-017, \u00b6\u00b6 12, 15, 143 N.M. 400, 176 P.3d 1132.\n{3} We are persuaded that the concerns raised by the Court of Appeals warrant revisiting this Court\u2019s interpretation of legislative intent regarding New Mexico\u2019s DWI law. No motion of the vehicle is asserted in this case, either before or at the time the police officer approached Defendant. Had 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 \u201cactual physical control\u201d to prove that Defendant was DWI. It is only when there are no witnesses to the vehicle\u2019s motion that actual physical control is essential to prove DWI at the time an accused is apprehended. Therefore, our interpretation strictly concerns the legislative intent of the phrase \u201cactual physical control.\u201d Mindful that the Legislature itself removed the phrase \u201cactual physical control\u201d from the DWI statute, and that the statute nonetheless relates to driving while intoxicated, we do not believe that the Legislature intended to forbid intoxicated individuals from merely entering their vehicles as passive occupants or using their vehicles for temporary shelter. The purpose of our DWI legislation is \u201cto protect the health, safety, and welfare of the people of New Mexico\u201d from \u201cthe risk of harm posed by intoxicated drivers.\u201d Johnson, 2001-NMSC-001, \u00b6\u00b6 6, 17, 130 N.M. 6, 15 P.3d 1233 (emphasis added).\n{4} As will be explained in detail later in this opinion, a fact finder cannot simply assume or speculate that the individual in question might sometime in the future commence driving his or her vehicle. Instead, the fact finder must assess the totality of the circumstances and find that (1) the defendant was actually, not just potentially, exercising control over the vehicle, and (2) the defendant had the general intent to drive so as to pose a real danger to himself, herself, or the public. In this case, the State failed to prove that Defendant used the vehicle other than as a passive occupant. It was pure speculation whether Defendant would rouse himself and drive the vehicle. Defendant could not be convicted for what he might have done. The State had to prove beyond a reasonable doubt that Defendant actually exercised physical control over the vehicle with the general intent to drive so as to endanger the public. Having failed to meet its burden, the State did not establish actual physical control. Therefore, Defendant\u2019s plea is set aside and the charge is dismissed.\nI. BACKGROUND\n{5} In December 2004, Defendant was charged in metropolitan court with one count of aggravated DWI, first offense, contrary to Section 66-8-102. Defendant entered into a conditional plea agreement after the metropolitan court judge found that Defendant could have put the vehicle in motion had he roused himself, and therefore was in actual physical control of the vehicle. On appeal to the district court, the dispositive issue was whether Defendant could have roused himself and \u201cput the vehicle in motion and operated it with less than a safe and steady hand.\u201d The district court affirmed the metropolitan court, finding that \u201c[w]hether the car\u2019s engine was running or not, whether the keys were in the ignition or not, whether [Defendant] was conscious or not, does not matter. [Defendant] had physical control of the car: he was in the driver\u2019s seat and the keys were within his reach.\u201d Therefore, the district court found that Defendant \u201ccould have directly started the car.\u201d\n{6} The Court of Appeals affirmed, holding that \u201cthe 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.\u201d Sims, 2008-NMCA-017, \u00b6 10, 143 N.M. 400, 176 P.3d 1132. The Court of Appeals relied primarily on our discussion in Johnson concerning the legislative purpose behind Section 66-8-102, which is to \u201cdeter persons from placing themselves in a situation in which they can directly commence operating a vehicle while they are intoxicated.\u201d Sims, 2008-NMCA-017, \u00b6 8, 143 N.M. 400, 176 P.3d 1132 (internal quotation marks and citation omitted). The Court also stated that no \u201ccoherent rationale\u201d could distinguish between circumstances where the keys are in the ignition or \u201cmillimeters away\u201d on the seat. Id. \u00b6 11. However, the Court of Appeals majority opinion expressed concern with Johnson and urged this Court to \u201ctake another look at what constitutes driving while intoxicated.\u201d Id. \u00b6 12. In particular, the Court of Appeals expressed \u201cconcerns [that] conduct of this nature ris[es] to the level of DWI[.]\u201d Id. \u00b6 11. The dissent also urged this Court to reconsider our holding in Johnson and to reverse Defendant\u2019s conviction. Id. \u00b6 15 (Sutin, C.J., dissenting). We granted Defendant\u2019s petition for writ of certiorari, State v. Sims, 2008-NMCERT-001, 143 N.M. 399, 176 P.3d 1131, and reverse.\nII. DISCUSSION\nA. DWI Statute and Jurisprudence\n{7} The New Mexico Motor Vehicle Code provides that \u201c[i]t is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.\u201d Section 66-8-102(A). Prior to 1953, the Legislature had limited the statutory proscription to driving a vehicle while under the influence, which is similar to the way the statute now reads. NMSA 1941, \u00a7 68-502 (1929, prior to 1953 amendment). In 1953, however, the Legislature changed the wording to make it unlawful \u201cfor any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this State.\u201d 1953 N.M. Laws, eh. 139, \u00a7 54 (emphasis added). At the same time, the Legislature statutorily defined \u201cdriver\u201d for the first time to mean \u201c[e]very person who drives or is in actual physical control of a vehicle.\u201d 1953 N.M. Laws, ch. 139, \u00a7 11 (emphasis added). After these amendments, the substantive statute and the definition remained unchanged until 1978.\n{8} In 1978, the Legislature amended the definition of \u201cdriver,\u201d changing \u201cvehicle\u201d to \u201cmotor vehicle\u201d and appending the phrase \u201cincluding a motor-driven cycle, upon a highway or who is exercising control over, or steering, a vehicle being towed by a motor vehicle.\u201d 1978 N.M. Laws, ch. 35, \u00a7 4(17) (codified as amended at NMSA 1978, \u00a7 66 \u2014 1\u2014 4.4(k) (1990, as amended through 2007)). The Legislature did not make similar changes to any other sections of the Motor Vehicle Code.\n{9} In 1979, the Legislature struck the \u201cactual physical control\u201d language from each of the substantive Motor Vehicle Code sections relating to DWI, but retained it in the \u201cdriver\u201d definition. See 1979 N.M. Laws, eh. 71, \u00a7\u00a7 1, 7, 8, 11 (retaining \u201cactual physical control\u201d in Section 66-l^L4(K) and deleting the phrase from Sections 66-8-102, -107, and -112, respectively). The term \u201cdriver\u201d appears in numerous locations throughout the Motor Vehicle Code and the definition applies universally. See NMSA 1978, \u00a7 66-1-4 (1978, as amended through 1991) (stating that the definition sections \u201cdefine terms for general purposes of the Motor Vehicle Code\u201d). As a result of these changes, the Legislature made the substantive DWI provision inconsistent with the \u201cdriver\u201d definition in two ways: (1) the DWI section referred to \u201cvehicle\u201d rather than \u201cmotor vehicle\u201d; and (2) it no longer used \u201cactual physical control,\u201d whereas the \u201cdriver\u201d definition still did. One possible interpretation of this across-the-board omission from the substantive provisions is that the Legislature intended to return to the pre-1953 DWI provision when \u201cactual physical control\u201d was not an element of the DWI crime and only driving while intoxicated was proscribed.\n{10} In 1986, however, this Court interpreted these cumulative changes to convey the Legislature\u2019s intent not to sever the \u201cdriver\u201d definition from the substantive DWI section, or as a substantive change to return to the language of the pre-1953 provision, but to \u201cstreamline and clarify\u201d the Motor Vehicle Code. Boone v. State, 105 N.M. 223, 225, 731 P.2d 366, 368 (1986). Finding as a matter of law that the term \u201cdrive\u201d was \u201cunclear,\u201d the Boone Court turned to statutory construction to resolve the ambiguity. Id. Rather than interpret the 1979 omission of \u201cor be in actual physical control of\u2019 from the DWI section as evidence that the Legislature intended to narrow the scope of the statutory offense, this Court found that the intent was to make the DWI section consistent with the Motor Vehicle Code\u2019s recently revised definition of \u201cdriver.\u201d Id. at 225-26, 731 P.2d at 368-69.\nIn 1978, the Motor Vehicle Code was rewritten substantially, and the definition of \u201cdriver\u201d was amended to encompass \u201cevery person who drives or is in actual physical control of a motor vehicle ... or who is exercising control over, or steering, a vehicle being towed by a motor vehicle.\u201d The new definition was inconsistent with the unchanged DWI section in its references to motor vehicles but not in its use of the phrase \u201cdrives or is in actual physical control of.\u201d\nId. at 225, 731 P.2d at 368 (citation omitted).\n{11} The Boone Court determined that the Legislature intended that the definition of \u201cdriver\u201d and the DWI section must be consistent, and that the Legislature had two options in 1979 to reconcile them as a result of the 1978 changes. \u201cThe Legislature could have conformed Section 66-8-102 to the definition by adding the appropriate references to motor vehicles and towed vehicles. Instead it chose to streamline and clarify the DWI section by using only the statutorily defined term, \u2018drives.\u2019 \u201d Id. The Boone Court, as Chief Justice Minzner noted in her dissent in Johnson, applied the definition of the term \u201cdrives\u201d coextensively with the term \u201cdriver,\u201d because the Motor Vehicle Code does not actually define the term \u201cdrives.\u201d 2001-NMSC-001, \u00b6\u00b6 34-36, 130 N.M. 6, 15 P.3d 1233 (Minzner, C.J., and Franchini, J., dissenting). The Boone majority cited a Pennsylvania case, Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375, 383 (1974) (using \u201coperator\u201d and \u201coperation\u201d to apply to verb \u201coperate\u201d), for the interpretive approach equating \u201cdrive\u201d with \u201cdriver.\u201d Boone, 105 N.M. at 225, 731 P.2d at 368.\n{12} Using this method of construction, the Boone Court determined that the amendments to the DWI section and the Motor Vehicle Code intended\nto make clear that the Legislature\u2019s definition of \u201cdriver\u201d applies to the offense of DWI. We therefore hold that Section 66-8-102 makes it unlawful for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of a motor vehicle or to exercise control over or steer a vehicle being towed by a motor vehicle; motion of the vehicle is not a necessary element of the offense.\nId. at 226, 731 P.2d at 369. According to this interpretation, the Legislature\u2019s purpose was to keep the \u201cactual physical control\u201d language in the substantive DWI provisions, because the \u201cdriver\u201d definition was meant to apply to every substantive provision using the word \u201cdrive.\u201d Therefore, it was unnecessary for the Legislature to restate in every relevant DWI provision \u201cor be in actual physical control\u201d because the phrase was automatically incorporated by reference to the \u201cdriver\u201d definition.\nB. Boone Was Intended to Allow Prosecution for Past DWI, but It Has Been Misinterpreted to Allow Prosecution for Future DWI\n{13} It is important to understand that the Boone Court\u2019s rationale went beyond merely seeking to reconcile the \u201cdriver\u201d definition with an ambiguous DWI provision. Rather, the driving force behind this Court\u2019s holding in Boone was 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. 105 N.M. at 226, 731 P.2d at 369.\n{14} Boone presented the problem of an obviously intoxicated individual in a vehicle that was not moving at the time the arresting officer arrived at the scene. The defendant\u2019s car was stopped with its lights off and the engine running in the middle of the street. Id. at 224, 731 P.2d at 367. The investigating officer noted that the defendant, who was sitting in the driver\u2019s seat, smelled of alcohol, slurred his speech, walked unsteadily, and failed all but one of the field sobriety tests administered. State v. Boone, No. 8093, slip op. at 1-2 (N.M. Ct. App. Sept. 12, 1985). The trial court found that Section 66-8-102 \u201crequires that the vehicle be placed in motion,\u201d and therefore that the arresting officer \u201chad no probable cause to believe that the offense of driving while under the influence was being committed in his presence.\u201d Id. at 2.\n{15} The impediment for the trial court was the common law rule that a police officer cannot make a valid warrantless arrest for a misdemeanor driving while under the influence charge when the officer did not himself see the vehicle in motion. See id. at 1; see also State v. Luna, 93 N.M. 773, 777, 606 P.2d 183, 187 (1980) (\u201cA warrantless arrest of a person for violation of a misdemeanor is valid only if the offense occurred in the arresting officer\u2019s presence.\u201d). The Court of Appeals did not find a violation of the misdemeanor arrest rule because \u201cthe circumstantial evidence in this case would permit a reasonable inference that defendant committed the misdemeanor offense of DWI \u2018in the presence\u2019 of the arresting officer.\u201d State v. Boone, No. 8093, slip op. at 1. As the Court of Appeals reasoned, \u201c[i]t would defy common sense to require the officer to leave defendant\u2019s car parked in the traffic lane while the officer went to a magistrate for an arrest warrant, thereby endangering not only the lives of the traveling public, but also the occupants of defendant\u2019s car.\u201d Id. at 4. Therefore, the Court of Appeals held that \u201cwhen the officer\u2019s own observations, together with the reasonable inferences which may be legitimately drawn from the circumstantial evidence, give probable cause to believe, or reasonable grounds to suspect, that a person under the influence was driving the vehicle, a warrantless arrest may be made.\u201d Id. The Court of Appeals determined in Boone that the defendant\u2019s car, stopped in the middle of the roadway with its lights out and motor running and with the defendant in the driver\u2019s seat, \u201ccoupled with defendant\u2019s slurred speech and the smell of alcohol ... justified] a finding that the officer had reasonable cause to believe, or reasonable grounds to suspect, that the offense of DWI was being committed in his presence by the defendant.\u201d Id. To hold otherwise \u201cwould mean the officer could not draw reasonable inferences from the plain facts, thus leading to absurd results.\u201d Id. at 4-5.\n{16} This Court, however, determined that the Court of Appeals erred by assuming that motion of a vehicle is required to violate the DWI statute and by expanding the \u201cmeaning of the requirement that the offense be committed \u2018in the presence of the officer[, which was] unnecessary to the determination of this case[.]\u201d Boone, 105 N.M. at 226, 731 P.2d at 369. This Court held that motion of a vehicle is unnecessary because \u201cactual physical control\u201d is all that is needed to violate the statute. Id. Given this interpretation, \u201cthe trial court had before it evidence upon which it could have found that the offense of DWI literally occurred in the arresting officer\u2019s presence!}]\u201d if the trial court could find on remand that the defendant was in \u201cactual physical control\u201d of the vehicle. Id.\n{17} Boone\u2019s purpose, therefore, was to create a judicial mechanism for prosecuting intoxicated drivers who had obviously been driving but no longer had the car in motion when in a police officer\u2019s presence. In other words, Boone used actual physical control to allow for a conviction of past DWI based on the continued control of the vehicle at the time of a police officer\u2019s arrival on the scene. However, the use of \u201cactual physical control\u201d by this Court in Boone has been interpreted to support the prosecution of an intoxicated person for DWI because he or she might drive in the future while still intoxicated. It is this latter interpretation that concerns us in this case.\n{18} The facts of this case implicate only the latter interpretation of actual physical control, which has been developed in subsequent decisions by this Court and the Court of Appeals, culminating in the expansive definition applied by the lower courts in this case. We now review those prior decisions to understand their holdings in light of Boone so that we can ensure our jurisprudence continues to adhere to legislative intent.\nC. Development of Actual Physical Control After Boone\n{19} Following Boone, this Court did not address \u201cactual physical control\u201d again until Johnson, 2001-NMSC-001, 130 N.M. 6, 15 P.3d 1233. At issue in Johnson was \u201cwhether the State can charge a defendant with DWI pursuant to NMSA 1978, \u00a7 66-8-102 (1997, prior to 1999 amendment) when the defendant is on private property and in actual physical control of a non-moving vehicle.\u201d Id. \u00b6 1. Neither of the consolidated cases in Johnson, however, turned on the meaning of \u201cactual physical control.\u201d Id. \u00b6 19 (\u201cRespondents do not challenge the finding that they were in actual physical control of their vehicles when they were arrested for DWI[.]\u201d). The Court\u2019s review was limited to \u201cwhether the Legislature intended to place a geographical limitation on the offense of DWI depending on the type of activity constituting the \u2018driving\u2019 of a vehicle.\u201d Id. \u00b6 5. That is, while the \u201cdriving\u201d prohibition applies on both public and private property, id. \u00b6 9, this Court sought to determine whether being in \u201cactual physical control\u201d also applied on private as well as public property. Id. In holding that \u201cactual physical control\u201d also applied on private property, Johnson \u201creject[ed] any public/private property distinction with respect to the offense of DWI.\u201d Id. \u00b6 1. Notwithstanding the limited scope of the issue before it, this Court went further to \u201cdefine \u2018actual physical control!}]\u2019 \u201d Id. \u00b6 19.\n{20} We stated that \u201ca person is in actual physical control over a vehicle when he or she exercises direct influence over the vehicle.\u201d Id. \u201c[T]he clear purpose of the \u2018actual physical control\u2019 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.\u201d Id. In discussing actual physical control, we strayed into dicta by addressing an issue that was not squarely before us, was not challenged by the parties, and was not necessary for decision in the case. Kent Nowlin Constr. Co. v. Gutierrez, 99 N.M. 389, 390-91, 658 P.2d 1116, 1117-18 (1982) (holding that dicta is language unnecessary to the decision of the issues before the court and is not binding as a rule of law). This broadly worded dicta led to Defendant\u2019s conviction in this case based on very little evidence to show actual physical control of his vehicle.\n{21} In reaching our decision in Johnson, we relied on a series of Court of Appeals opinions developing this nascent jurisprudence stemming directly from Boone, most important among them being State v. Harrison, 115 N.M. 73, 846 P.2d 1082 (Ct.App.1992), as well as an out-of-state case with a different DWI provision. Johnson, 2001-NMSC-001, \u00b6 19, 130 N.M. 6, 15 P.3d 1233 (citing City of Cincinnati v. Kelley, 47 Ohio St.2d 94, 351 N.E.2d 85, 87 (1976) (\u201cThe clear purpose of the control aspect of the instant ordinance is to deter persons from being found under circumstances in which they can directly commence operating a vehicle while they are under the influence of alcohol or particular drugs.\u201d)). In Harrison, the defendant was a passenger in his own vehicle until it stalled and would not restart. 115 N.M. at 74, 846 P.2d at 1083. The driver steered the vehicle toward the curb and left in search of help. Id. at 74-75, 846 P.2d at 1083-84. Concerned that the defendant would attempt to drive while intoxicated, the driver took the keys from the ignition, placed them under the seat, positioned bricks before the front and back tires of the vehicle on the driver\u2019s side, and instructed the defendant not to leave the vehicle. Id. Some time later, police officers investigated and found the defendant \u201cpassed out behind the steering wheel of the car\u201d with the key in the ignition, the ignition turned on, the transmission in drive, and with the defendant\u2019s foot on the brake and hands on the steering wheel. Id. at 75, 846 P.2d at 1084. The officers noted that the defendant had slurred speech, red blood-shot eyes, and smelled of alcohol. Id. The defendant refused field sobriety tests, but after being transported to the Bernalillo County Detention Center he submitted to a breath-alcohol test that produced readings of .17 and .15, well in excess of the legal limit. Id.; \u00a7 66-8-102(C).\n{22} Based on these facts, the Court of Appeals held that \u201c[i]t can reasonably be inferred that Defendant actively searched for the vehicle keys, started the engine, and was prepared to drive away before he passed out or fell asleep.\u201d Harrison, 115 N.M. at 76, 846 P.2d at 1085. The Court of Appeals affirmed the defendant\u2019s conviction, holding that \u201ca defendant may exercise \u2018actual physical control\u2019 over a vehicle when he is discovered behind the wheel of an automobile, either passed out or asleep, under these circumstances.\u201d Id. (emphasis added). That is, the circumstantial evidence supported a finding that the defendant exerted actual, not hypothetical, physical control over the vehicle because he turned on the vehicle\u2019s engine, placed its transmission in the drive position, and applied his foot to the vehicle\u2019s brake.\n{23} The Harrison Court further held that under Boone, \u201c[t]he fact that the officers discovered no signs that the vehicle had been moved by Defendant is irrelevant.\u201d Harrison, 115 N.M. at 76, 846 P.2d at 1085. The Court of Appeals also determined for the first time in Harrison that DWI is a strict liability crime because the statute \u201cmakes absolutely no reference whatsoever to a required intent on the part of an accused.\u201d Id. at 77, 846 P.2d at 1086. Based on the strict liability nature of the crime and on previous interpretations of the legislative policy behind the DWI legislation, Harrison made strong statements about the public policy supporting the Court\u2019s interpretation of the statute. See id. (\u201cthe public\u2019s interest in deterring individuals from driving while intoxicated is compelling\u201d; \u201cthe policy behind the DWI statute is to prevent individuals from driving or exercising actual physical control over a vehicle when they ... are unable to exercise the clear judgment and steady hand necessary to handle a vehicle with safety both to themselves and the public\u201d); see also Johnson, 2001-NMSC-001, \u00b6 17, 130 N.M. 6, 15 P.3d 1233 (\u201c[T]he public interest and potential harm posed by intoxicated drivers is so compelling that the offense of DWI is a strict liability crime\u201d). The Harrison Court was particularly concerned with a defendant who argued that \u201che could not be convicted of DWI because he was too intoxicated to form the conscious intent to drive drunk.\u201d 115 N.M. at 78, 846 P.2d at 1087. As the Court in Harrison reasoned in support of its strict liability determination, \u201c[t]o allow persons charged with DWI the opportunity to present such a defense would be absurd and undoubtedly contrary to the statute\u2019s purpose.\u201d Id.\nD. Actual Physical Control Requires Proof of a General Intent to Drive\n{24} We agree with Harrison and reaffirm that the DWI provision proscribing driving while intoxicated is a strict liability crime and requires no mens rea for conviction when the accused, while intoxicated, is observed behind the steering wheel of a moving vehicle. However, the facts of this case persuade us that when a DWI charge is based on evidence of \u201cactual physical control,\u201d evidence of intent is also necessary to support a conviction. The threat, if any, that was posed by Defendant as he lay passed out or asleep in his vehicle was far short of that posed by an intoxicated individual who is driving. While Defendant arguably exercised some level of control over the vehicle, given his location in the driver\u2019s seat and the proximity of his keys, there was no indication that he posed any actual, as opposed to hypothetical, threat to the public.\n{25} In fact, an intoxicated individual may exercise a great deal of control over a vehicle, yet still pose little danger to himself, herself, or the public. For example, on a cold night, an intoxicated person may use his vehicle as a temporary shelter \u2014 as a place to sleep it off \u2014 even going so far as to start the engine so that he can turn on the heater. Such an individual, while clearly in control of his vehicle, does not pose a threat to himself, herself, or the public precisely because he has decided not to drive. The individual\u2019s recognition that he is too intoxicated to drive embodies the aim of our DWI law and its enforcement. To subject this type of behavior to strict liability would be counterproductive.\n{26} It is not until an intoxicated individual in actual physical control of a vehicle forms the intent to drive that he becomes a danger. At that moment he ceases to be merely a passive occupant of the vehicle \u2014 he becomes a threat to public safety and is therefore culpable under the DWI law. We therefore hold that a DWI conviction that is based on actual physical control requires proof that the accused actually exercised control over the vehicle, as well as proof of a general intent to drive, so as to pose a real danger to the safety of the driver or the public. It is no longer sufficient to introduce evidence that shows that the accused \u201ccan directly commence operating a vehicle while ... intoxicated.\u201d Johnson, 2001-NMSC-001, \u00b6 19, 130 N.M. 6, 15 P.3d 1233.\n{27} We recognize that interpreting actual physical control to require proof of intent makes it analytically similar to an attempt crime. See NMSA 1978, \u00a7 30-28-1 (1963) (requiring \u201can overt act in furtherance of and with intent to commit\u201d the crime); cf. Johnson, 2001-NMSC-001, \u00b6 19, 130 N.M. 6, 15 P.3d 1233 (equating \u201cactual physical control\u201d with being \u201cin a situation in which [drivers] can directly commence operating a vehicle while they are intoxicated\u201d); Atkinson v. State, 331 Md. 199, 627 A.2d 1019, 1025 (1993) (noting that the view among many states is that the purpose of the \u201cactual physical control\u201d language in DWI provisions is preventive, aimed to protect the public from what inebriated individuals \u201cmight\u201d do (internal quotation marks and citation omitted)). We note that the Legislature has intended that \u201c[n]o person shall be sentenced for an attempt to commit a misdemeanor.\u201d Section 30-28-1. This is true in general, unless a specific statute provides otherwise. See City of Albuquerque v. Chavez, 91 N.M. 559, 560, 577 P.2d 457, 458 (Ct.App.1978) (holding that Section 30-28-1 is \u201cinapplicable if another statute authorizes the alleged attempted misdemeanor\u201d). Insofar as we believe that the Legislature equated proof of actual physical control with proof of driving, Section 66-8-102 authorizes prosecution for attempted DWI. Thus, when the prosecution relies on actual physical control to prove DWI, the prosecution must prove an overt act sufficient to establish actual physical control of the vehicle along with the general intent to drive. See \u00a7 30-28-1.\nE. Policy and Legislative Intent Support Limiting Boone and Johnson\n{28} At the time the New Mexico Supreme Court filed its opinion in Boone, overruling the Court of Appeals by a narrow 3-2 margin, its holding was recognized as problematic. Justice Walters wrote a dissent, arguing that the \u201cmajority opinion goes too far.\u201d Boone, 105 N.M. at 228, 731 P.2d at 371 (Walters, J., and Sosa, J., dissenting). Foreshadowing what was to come, Justice Walters was concerned that \u201c[t]he rationale of the majority opinion would apply as easily to anyone sitting in a parked car in front of his own house or in front of any establishment, if the arresting officer smelled alcohol and observed slurred speech.\u201d Id. In addition to raising concerns that such conduct is not clearly proscribed by the express language of the DWI statute, Justice Walters criticized the opinion for the \u201cconvoluted rationale\u201d behind importing the definition of \u201cdriver\u201d into the DWI law. Id. Similarly, Chief Justice Minzner and Justice Franchini joined in a forceful dissent to Johnson, raising \u201cconcerns about whether Boone was correctly decided.\u201d Johnson, 2001-NMSC-001, \u00b6 34, 130 N.M. 6, 15 P.3d 1233 (Minzner, C.J., and Franchini, J., dissenting). Chief Justice Minzner found the Boone Court\u2019s \u201clogic ... unclear.\u201d Id. \u00b6 36.\nTo conclude that the term \u201cdrives\u201d is coextensive with the statutory definition of \u201cdriver\u201d and thus includes all situations where a driver is in actual physical control of a vehicle seems to me to require something more than the statutory analysis we performed in Boone. Perhaps we should never have equated the two terms and instead should have restricted our remarks to stating that the seriousness of the DWI problem in our state justified equating the two terms, but that such a task \u201crequires legislative therapy, not judicial surgery.\u201d\nId. (citation omitted). Similarly, the Court of Appeals, in deciding this very case, voiced concern over Johnson\u2019s broad language that is rooted in Boone: \u2018Were we to analyze this case on a clean slate, we would reverse based on the reasoning set forth in the dissent written by Justice Minzner in Johnson.\u201d Sims, 2008-NMCA-017, \u00b6 12, 143 N.M. 400, 176 P.3d 1132 (citations omitted). Kesurrecting concerns from earlier dissents, the Court of Appeals majority and dissenting opinions in Sims both urged this Court \u201cto take another look at what constitutes driving while intoxicated.\u201d Id. \u00b6\u00b6 12, 15.\n{29} While we agree that elements of Boone and Johnson go too far, we adhere to our understanding that \u201c[t]he purpose of our DWI legislation is to protect the public from the risk of harm posed by intoxicated drivers},]\u201d Johnson, 2001-NMSC-001, \u00b6 17, 130 N.M. 6, 15 P.3d 1233, and \u201cto protect the health, safety, and welfare of the people of New Mexico.\u201d Id. \u00b6 6.\nThe policy underlying the DWI statute is to \u201cprevent individuals from driving or exercising actual physical control over a vehicle when they, either mentally or physically, or both, are unable to exercise the clear judgment and steady hand necessary to handle a vehicle with safety both to themselves and the public.\u201d\nId. \u00b6 17 (citation omitted). As we confirmed in Johnson, \u201cthe legislature recognized this significant public interest and potential harm when it drafted Section 66-8-102\u201d and made \u201cthe act of driving while intoxicated a crime, in and of itself, regardless of the intent of the accused.\u201d Harrison, 115 N.M. at 77, 78, 846 P.2d at 1086, 1087; accord Johnson, 2001-NMSC-001, \u00b6 17, 130 N.M. 6, 15 P.3d 1233 (affirming DWI is a strict liability crime). However, we also recognize that extending DWI liability to an individual who gets behind the wheel in the parking lot of a public restaurant or bar only to \u201crealize that he or she is too intoxicated to drive ... despite the fact that this decision not to drive is a preferable outcome to having the intoxicated person put the car in motion\u201d is not clearly supported by the Legislature. See State v. Wenger, 1999-NMCA-092, \u00b6 17, 127 N.M. 625, 985 P.2d 1205, reversed by Johnson, 2001-NMSC-001, \u00b6 24, 130 N.M. 6, 15 P.3d 1233. Creating this sort of liability could provoke an unscrupulous driver to take his or her chances on the road, rather than sleeping it off in the car, because it is possible to be arrested for DWI despite having formed the conscious intent not to drive. The many public service announcements regarding DWI suggest that the public has become more aware of the need for designated drivers or, in the absence of designated drivers, to keep from driving their vehicles while intoxicated.\n{30} In Johnson, we held that the \u201cclear purpose of the \u2018actual physical control\u2019 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[.]\u201d 2001-NMSC-001, \u00b6 19, 130 N.M. 6, 15 P.3d 1233. That language, however, was borrowed almost directly from an Ohio case reviewing a city ordinance that expressly prohibited actual physical control of a vehicle while intoxicated. Id. (citing Kelley, 351 N.E.2d at 86 (\u201c \u2018No person who is under the influence of alcohol or a drug of abuse ... shall operate or be in actual physical control of any vehicle within this city.\u2019 \u201d (citation omitted))). Kelley held that the purpose of the actual physical control element of the city ordinance in question was \u201cto deter persons from being found under circumstances in which they can directly commence operating a vehicle while they are under the influence of alcohol or particular drugs.\u201d 351 N.E.2d at 87.\n{31} Consequently, we agree that the dicta in Johnson identifying the purpose of actual physical control as \u201cdeterfring] persons from placing themselves in a situation in which they can directly commence operating a vehicle while they are intoxicated\u201d was overly broad. 2001-NMSC-001, \u00b6 19, 130 N.M. 6, 15 P.3d 1233. The facts of this case exemplify how this language could be misinterpreted to allow a conviction for conduct the Legislature did not intend to proscribe. Otherwise, rather than driving while intoxicated, it would be parked while intoxicated. We are confident that the intent element will align actual physical control with the legislative intent identified in Boone and Johnson.\n{32} To the extent that our prior decisions in Johnson and Boone conflict with our holding today, we limit those holdings in accord with this opinion. While we recognize that the statutory construction employed in Boone remains questionable, we note that since Boone was decided, at least two other jurisdictions have adopted an identical approach with their respective DWI legislation, incorporating \u201cactual physical control\u201d from the statutory definition for \u201cdriver\u201d into the substantive provision delimiting \u201cdrive.\u201d That other jurisdictions with similar DWI provisions have relied on the same logic and approach as this Court buttresses the essential holding and rationale employed in Boone.\nF. Proving Actual Physical Control\n{33} In reviewing approaches taken by other jurisdictions with respect to establishing actual physical control of a vehicle, we find portions of the recently recommended Arizona jury instruction particularly helpful and persuasive. Arizona\u2019s recommended instruction directs jurors to consider \u201cthe totality of the circumstances shown by the evidence\u201d and suggests a list of non-exhaustive factors that can be employed to determine whether a defendant had actual physical control and posed a real danger to himself or others. State v. Zaragoza, 221 Ariz. 49, 209 P.3d 629, 634 (2009) (en banc). We believe these non-exhaustive factors would be useful for a New Mexico fact finder to determine whether an individual is in actual physical control of a vehicle and has the general intent to drive so as to pose a real danger to himself, herself, or the public. The factors are:\n1. Whether the vehicle was running;\n2. Whether the ignition was on;\n3. Where the ignition key was located;\n4. Where and in what position the driver was found in the vehicle;\n5. Whether the person was awake or asleep;\n6. Whether the vehicle\u2019s headlights were on;\n7. Where the vehicle was stopped;\n8. Whether the driver had voluntarily pulled off the road;\n9. Time of day;\n10. Weather conditions;\n11. Whether the heater or air conditioner was on;\n12. Whether the windows were up or down;\n13. Any explanation of the circumstances shown by the evidence.\nId.; see also Revised Arizona Jury Instruction (\u201cRAJI\u201d) (Standard Criminal) 28.1381(A)(1)(DUI) (3d ed. 2008). Arizona also instructs jurors that \u201c[i]t is up to [them] to examine all the available evidence in its totality and weigh its credibility in determining whether the defendant was simply using the vehicle as a stationery [sic] shelter[.]\u201d Zaragoza, 209 P.3d at 633 (citing RAJI (Standard Criminal) 28.1381(A)(1)(DUI) (3d ed. 2008)). We agree with this additional factor when the prosecution relies on actual physical control to prove DWI.\n{34} The clarification of our actual physical control jurisprudence that we introduce today is supported by the rationale and public policy underlying New Mexico\u2019s DWI law and legislative intent, which is to prevent people from driving while intoxicated and endangering themselves or the public. The prosecution must establish, based on the totality of the circumstances, that the accused was actually, not just potentially, exercising control over the vehicle with the general intent to drive so as to pose a real danger to himself, herself, or the public. If the Legislature intends otherwise, it is free to amend the statute to make clear its purpose.\n{35} To understand how these factors might be applied to determine whether a driver is in actual physical control of a vehicle and has the general intent to drive so as to endanger the public, we review some precedent cases. The facts from Harrison implicate numerous factors in the analysis \u2014 the key was in the ignition, the ignition was on, and the driver was sitting behind the wheel of the vehicle in a traffic lane while he applied the brakes, thus demonstrating actual control of the vehicle. 115 N.M. at 75, 846 P.2d at 1084. The jury also would have to determine whether these same facts evidenced the defendant\u2019s intent to drive so as to endanger the public. That the vehicle was on a roadway arguably increases the danger posed to both the defendant and the public and supports an inference of the general intent to drive. The facts in Boone are similar in this regard. The defendant\u2019s vehicle was in the middle of a traffic lane and the motor was running, but the lights were turned off. Boone, 105 N.M. at 226-27, 731 P.2d at 369-70. Most importantly, there are no facts in either case that indicate that the defendants were passive occupants or had been using their vehicles as stationary shelters.\n{36} In State v. Rivera, 1997-NMCA-102, \u00b6 2, 124 N.M. 211, 947 P.2d 168, the defendant \u201cwas found either unconscious or asleep at the wheel of his car in the front yard of his house; the car\u2019s engine racing.\u201d While the Court of Appeals determined that Rivera was similar to Harrison and so upheld the conviction, id. \u00b6 3, the recitation of the facts does not make clear what time of day the defendant was apprehended; whether the transmission was in drive; whether he intended to drive or was in his vehicle for the sole purpose of listening to the radio, as his wife contended; or why or how the vehicle came to rest in his front yard. It is possible that, given our clarification of the meaning of actual physical control in this case, the answers to these questions may have mandated a different outcome on appeal if the fact finder could not conclude beyond a reasonable doubt that the defendant was anything other than a passive occupant who did not intend to drive. We note that unlike Boone, the defendant in Rivera was not stopped in the middle of a roadway, where it is unlikely an individual would choose to use a vehicle as a place of shelter while intoxicated. The public endangerment factor is also not as clearly implicated when a vehicle is lawfully parked in a front yard.\n{37} The facts of the consolidated cases we reviewed in Johnson also pose some challenges under the more demanding totality test we introduce today. The defendant in Wenger was found in the driver\u2019s seat of his vehicle, with the keys in the ignition but the engine off, parked off the roadway on private property. 1999-NMCA-092, \u00b6 2, 127 N.M. 625, 985 P.2d 1205, reversed by Johnson, 2001-NMSC-001, \u00b6\u00b6 4, 24, 130 N.M. 6, 15 P.3d 1233. While there was evidence that the defendant actually had been driving, the Court of Appeals determined that the State did not preserve the argument that there was \u201cevidentiary support for an inference that Defendant was driving while intoxicated[,]\u201d and so affirmed the conviction based only on evidence of actual physical control. Wenger, 1999-NMCA-092, \u00b6\u00b6 4, 18, 127 N.M. 625, 985 P.2d 1205. It is unlikely that evidence of an intoxicated individual sitting in his or her lawfully parked vehicle with the keys in the ignition, but the ignition off, and nothing more, would be sufficient to establish actual physical control under the more narrow test we introduce today. What facts would have been sufficient to find actual physical control, however, were not at issue in Wenger. The sole question in Wenger and Johnson, its companion case, was whether the crime of actual physical control applied on private as well as public property because the defendants did not challenge the finding of actual physical control. Johnson, 2001-NMSC-001, \u00b6 1, 130 N.M. 6, 15 P.3d 1233. The facts in Johnson, to the extent they were developed at all, also appear to be insufficient under the new totality test to indicate that control was actual, and not potential or hypothetical. The defendant in Johnson was parked in a motel parking lot with the vehicle\u2019s engine running, the key in the ignition, and a large pool of condensation under the exhaust pipe, \u201cindicating that the car had possibly been at the location for three hours.\u201d Id. \u00b6 3. On these facts alone, it is not clear whether the defendant was using his vehicle for anything other than a shelter, or how either defendant was endangering himself or the public.\n{38} It is evident from a brief review of these cases that the totality of the circumstances test we adopt today increases the evidentiary burden on the State relative to the dicta in Johnson. See id. \u00b6 19 (stating that the purpose of actual physical control is to \u201cdeter persons from placing themselves in a situation in which they can directly commence operating a vehicle while they are intoxicated\u201d). More care will be required of investigating officers and prosecutors to establish facts tending to prove that defendants actually used their vehicles with the general intent to drive and posed a real danger to themselves or the public. Facts that suggest what the defendants might do or the ease with which the defendants could commence driving are now insufficient to establish actual physical control. A totality of the circumstances test must prove what defendants have done and what they intend to do, not merely what they might do. A finding that \u201cthere [is] nothing to prevent [the defendant from ... driving\u201d is now inadequate. Sims, 2008-NMCA-017, \u00b6 9, 143 N.M. 400, 176 P.3d 1132.\nIII. CONCLUSION\n{39} For the foregoing reasons, we reverse the Court of Appeals, set aside Defendant\u2019s plea, and dismiss the charges.\n{40} IT IS SO ORDERED.\nWE CONCUR: CHARLES W. DANIELS, Chief Justice, PATRICIO M. SERNA, PETRA JIMENEZ MAES, and RICHARD C. BOSSON, Justices.\n. The Pennsylvania court was careful to limit \"actual physical control\u201d in a way that Boone did not by stating that \"[a] driver has 'actual physical control\u2019 of his car when he has real (not hypothetical), bodily restraining or directing influence over, or domination and regulation of, its movements of machinery.\u201d Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375, 383 (1974) (citation omitted) (emphasis added).\n. The Boone Court's importation of the \"driver\u201d definition and its other terms into the substantive DWI sections created several inconsistencies. Already litigated and decided by this Court in Johnson is the geographical distinction between public and private land seemingly created by the definition\u2019s phrase \"upon a highway.\u201d Johnson, 2001-NMSC-001, \u00b6 13, 130 N.M. 6, 15 P.3d 1233 (internal quotation marks omitted). We now address \"actual physical control\u201d for the first time. Yet to be litigated is the distinction between \u201cvehicle\u201d and \"motor vehicle.\u201d The Boone holding seems to constrain the DWI statute to \"motor vehicle\u201d as used by the \u201cdriver\u201d definition, notwithstanding the Legislature\u2019s express preference for the broader term \"vehicle\u201d in the substantive DWI provision. 105 N.M. at 225, 731 P.2d at 368. It appears that this confusion between \u201cmotor vehicle\u201d and \"vehicle\u201d has been imported into our jury instructions, as well, contrary to express statutory language. See UJI 14-4501 NMRA (providing that \"the state must prove to your satisfaction beyond a reasonable doubt [that t]he defendant operated a motor vehicle \" (emphasis added)).\n. \"New Mexico courts have ... allow[ed] voluntary intoxication as a consideration only for specific-intent crimes!.] Under this approach, evidence of voluntary intoxication is not admissible for what are referred to as general-intent crimes.\u201d State v. Brown, 1996-NMSC-073, \u00b6 22, 122 N.M. 724, 931 P.2d 69 (citations omitted).", "type": "majority", "author": "CH\u00c1VEZ, Justice." } ], "attorneys": [ "Albright Law & Consulting, Jennifer Rebecca Albright, Albuquerque, NM, for Petitioner.", "Gary K. King, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, NM, for Respondent." ], "corrections": "", "head_matter": "2010-NMSC-027\n236 P.3d 642\nSTATE of New Mexico, Plaintiff-Respondent, v. Mark SIMS, Defendant-Petitioner.\nNo. 30,827.\nSupreme Court of New Mexico.\nJune 8, 2010.\nAlbright Law & Consulting, Jennifer Rebecca Albright, Albuquerque, NM, for Petitioner.\nGary K. King, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, NM, for Respondent." }, "file_name": "0330-01", "first_page_order": 364, "last_page_order": 376 }