So with all of that taken care of, this is from a news story in the Albuquerque Journal.
SANTA FE — A driver who was found passed out behind the wheel with his keys on the passenger seat next to him can be convicted of drunken driving, according to a divided state Court of Appeals panel.
The appeals court said Mark Sims had "actual physical control'' of the vehicle — the test established in an earlier case by the state Supreme Court — and affirmed his conviction on one count of driving while intoxicated.
"Based on the facts of this case, there was nothing to prevent defendant from awakening, reaching for the keys, and driving from the parking lot," Judge Celia Foy Castillo wrote in an opinion issued Wednesday.
Sims had entered a conditional plea of guilty to the DWI charge in Bernalillo County Metropolitan Court, then appealed it to state district court, which upheld the conviction.
According to the Court of Appeals opinion, he was found passed out or asleep in his vehicle in a commercial parking lot, admitted to having had three drinks and performed poorly on field sobriety tests.
He argued that state law requires the key to be in the ignition to establish the driver's physical control.
Not so, said Castillo and Judge Lynn Pickard.
Chief Judge Jonathan Sutin dissented, saying he saw little difference between the circumstances of the Sims case and that of a person who is outside a vehicle with the key in his pocket — in another car, for example, or passed out on the ground or leaving a restaurant headed toward the vehicle.
Under the current law, criminal liability should be limited to instances in which the defendant "is in a position, directly and immediately, to instantly get the vehicle running and moving,'' Sutin said.
Any broadening of that should be done by the Legislature, rather than the courts, he said.
Now I have issues with this ruling. This is the start of a very slippery slope if I may say so. From here it will go to if you are drunk and just go to make sure your car is locked before you get a ride home, they will charge you with DWI. Next it will be if you are drunk and have car keys in your pocket, but are no where near your car, you will get charged with DWI. From there, who knows, but my guess is very much down hill.
As much as I really think we need to toughen our DWI / DUI laws, this is not the way to do it. So here is a note to all of you, if you get drunk and want to sleep it off in your car, make sure you sit in the back seat of your car, with your keys safely locked in the trunk. Now the much better option would to A) just not get drunk in the first place, or B) make sure you have a DD (Designated Driver) or call a cab.