The New Mexico Court of Appeals again addressed the issue of evidence of driving in a DWI case. The recent case of State v. Cotton is a bit hard to reconcile with the Court's other recent opinion in State v. Owelicio.
The Cotton case, like Owelicio, involved an immobile vehicle. Like Owelicio, the investigating officer found a vehicle beside the road. In Cotton, unlike Owelicio, the officer found an individual behind the wheel of the car. Along with the driver, the officer in Cotton found a female with a bloody lip, possibly a victim of domestic violence which was the impetus for the investigation to begin with. In addition, the officer found 4 small children in the car. Cotton failed the field sobriety tests. He refused the breath alcohol test which resulted in a charge of aggravated DWI. He was also charged with negligent child abuse.
Like Owelicio, the defendant made certain confessions. He confessed to drinking where Owelicio had confessed to driving despite evidence to the contrary. Cotton was convicted and appealed the verdict arguing the evidence was insufficient to support the DWI conviction. Specifically, he argued that the State had not proven that he was driving.
The State argued that it could be inferred that Cotton had been driving from the fact that the car was next to the road and Cotton neither lived in the car on the side of the road nor was it "placed there by aliens." The Court basically stated that the location of the vehicle next to the road did not prove that Cotton had been driving. He could have drank after pulling the car over. A finding of guilt required speculation on the part of the jury to find that he had been driving while intoxicated which the Court refused to allow.
The 2010 New Mexico Supreme Court case State v. Sims set forth requirements for a conviction where there was no witness to the driving but the defendant is in the vehicle. Basically, Sims requires that it be proven that defendant intended to drive the vehicle as evidenced by physical control over the vehicle. Sims makes clear that it applies only to cases premised on intent to drive, not cases such as Cotton where it is alleged that the defendant had driven in the immediate past.
Instead, the Court found the relevant case to be State v. Mailman, another 2010 New Mexico Supreme Court case. Remarkably, in the Mailman case, the officer found the defendant in the driver's seat. The car was not running and the keys were not in the ignition. However, the defendant admitted that he had been drinking and that he had thrown empty beer cans out of the vehicle while he was driving. Essentially, Mailman admitted to drinking and driving. He refused the breath alcohol test stating he was too drunk to pass. He was charged and convicted for aggravated DWI.
In Mailman, and in Cotton, the courts found that there was insufficient evidence of driving to support the DWI conviction. The Court in Mailman stated "[a]ctual 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." The Court in Mailman stated that the defendant might have been convicted based upon actual physical control and intent to drive but this had not been proven at trial. Nor had the State proven that he had driven. As result, the conviction was remanded for a new trial for the sole determination of whether he had driven in the immediate past.
The Court in Cotton, applying Mailman, found that the State had failed to prove the defendant had been driving. In addition, the State had not even attempted to prove control and intent to drive under Sims. Consequently, Cotton's conviction was reversed.
This decision is interesting in its own right. However, it is perhaps more interesting in comparison to the same Court of Appeals prior holding in State v. Owelicio. In that case, the car was on the side of the road, there was an intoxicated man changing two flat tires, and there was the defendant in the passenger seat. The passenger confessed to the DWI under protests from both the intoxicated man, who claimed a third party had been driving, and the officer who believed and told her she was lying.
The Court in Owelicio recognized that a confession alone without the corpus delicti (the act of driving while intoxicated) was insufficient. Yet the Court went to great lengths to find that the corpus delicti was established through corroborating evidence (the vehicle next to the road with 2 flat tires and 2 intoxicated individuals). The Court did not entertain the possibility that it could have been the same group of aliens that dropped Mr. Cotton's car next to the road had done likewise with the car in which witnesses had seen Owelicio traveling as a passenger? What about 2 flat tires changes the level of presumption or speculation necessary to show that Owelicio had been driving or that any DWI had occurred at all? The sequel is sure to come.