Can You Get a DWI in a Parked Car? What the Court Said in State v. Cotton

If you get caught sitting behind the wheel of a parked car after a few drinks, you probably assume a DWI conviction is guaranteed. The engine is off. The keys are out of the ignition. But the police show up, smell alcohol, and make an arrest anyway.

This happens all the time in New Mexico. But an arrest is not a conviction. The state still has to prove you broke the law.

The New Mexico Court of Appeals looked at exactly this scenario in a case called State v. Cotton. The court threw out a DWI conviction and a child abuse conviction because the prosecutors asked the jury to guess about what happened before the police arrived.

The jury is never allowed to guess.

The Arrest in Hobbs

In October 2008, deputies from the Lea County Sheriff's Department responded to a domestic disturbance call on a roadside in Hobbs. They found Jeremy Cotton sitting in the driver's seat of a parked van.

His girlfriend was in the passenger seat. Her four young children were in the back.

The van was not running. The keys were nowhere near the ignition.

Deputy Brown smelled alcohol and asked Cotton if he had been drinking. Cotton admitted he drank 24 ounces of beer about an hour earlier. He failed the standard field sobriety tests. He refused a chemical test. When the deputies tried to put him in the patrol car, he fought back. He refused to put his legs inside, threw himself onto the ground, and kicked one of the deputies.

The state charged him with aggravated DWI under NMSA 66-8-102. They also charged him with negligent child abuse under NMSA 30-6-1, arguing that the kids were in danger because he was drunk in the driver's seat. Finally, they charged him with resisting, evading, or obstructing an officer under NMSA 30-22-1.

A jury convicted him on all three counts. Cotton appealed the verdict.

Two Ways to Get a DWI in a Parked Car

To get a DWI conviction for a parked car in New Mexico, prosecutors typically rely on one of two legal theories.

The first theory is actual physical control. This means you are behind the wheel and you have an active intent to drive the car right then and there, posing a danger to yourself or the public. Think of someone passing out at a green light with the engine running. The police catch you in the act of trying to drive.

The second theory is past impaired driving. This means the state argues you obviously drove the car to that location while you were drunk, even if the car is turned off by the time the cops find you.

At trial, the prosecutors completely abandoned the first theory. They agreed Cotton wasn't trying to drive away when the deputies found him. Instead, they put all their chips on the past driving theory.

The state made a very simple argument to the jury. The van was on the side of the road. Aliens didn't put it there. Somebody had to drive it there. Cotton was in the driver's seat and he was drunk. Therefore, Cotton drove drunk.

The Court of Appeals rejected this logic entirely.

There was a massive hole in the state's timeline. Nobody actually saw Cotton driving the van. The prosecutors proved he was impaired when the deputies talked to him. They proved he drank beer an hour earlier. But they never proved when he parked the vehicle.

Cotton could have driven the van to the side of the road while completely sober. He could have parked the car, turned off the engine, and then drank the beer.

To convict him, the jury had to bridge that gap with pure speculation. They had to guess that the drinking and the driving overlapped. The law strictly forbids this. Because the prosecutors failed to connect the drinking to the driving with hard evidence, the court reversed the aggravated DWI conviction.

The Child Abuse Charge Failed Too

The state also lost the child abuse conviction.

Under New Mexico law, child abuse by endangerment is a serious felony. It's meant to punish conduct that creates a truly significant risk of serious harm to a child. It is not meant to punish bad parenting or theoretical mistakes.

The prosecutors argued that Cotton committed child abuse simply by being drunk in the driver's seat with the kids in the back. Their theory was based on what might happen next. They argued there was a reasonable possibility Cotton would eventually start the van and drive away, putting the children in a highly dangerous situation.

The Court of Appeals disagreed.

The court pointed out that Cotton hadn't actually done anything to endanger the kids. The danger the state described was entirely theoretical. Sure, he might have decided to drive later. But he also might have waited until he sobered up. Or, as actually happened, the police might show up and arrest him before he ever turned the key.

Punishing someone for a theoretical danger stretches the child abuse statute way too far. Because Cotton never actually drove the van while impaired, the children were never in substantial and foreseeable danger. The court reversed the child abuse conviction.

The Cost of Fighting the Police

Cotton beat the DWI. He beat the child abuse charge. But he still lost the appeal.

When the deputies tried to put him in the patrol car, Cotton threw a fit. He blocked the door. He threw himself onto the ground. He kicked the deputies twice while they tried to apply leg restraints. It ultimately took three deputies to secure him in the vehicle.

He argued on appeal that he was just trying to talk to his girlfriend and the deputies overreacted. The court didn't buy it. The evidence clearly showed he actively fought the officers while they were trying to do their jobs.

The court affirmed the conviction for resisting arrest. Cotton still faced a sentence for that crime.

This is a perfect example of how a bad reaction can ruin a winnable case. The prosecutors didn't have enough evidence to convict him of the major charges. If he had simply kept his mouth shut and stepped into the back of the patrol car, he likely would have walked away completely clean. Instead, he handed the police a separate crime on a silver platter.

What This Means for New Mexico Drivers

The rules regarding parked cars and DWI are incredibly strict. The state can't just point to a parked car, point to a drunk person sitting in it, and demand a conviction. They must prove you actually drove while impaired, or they must prove you had the immediate intent to start driving.

If you find yourself in a similar situation, your words matter.

Cotton admitted he drank 24 ounces of beer an hour ago. That gave the police probable cause to arrest him. If he had admitted to driving the car ten minutes ago, the state would have won the DWI conviction easily. His timeline saved him, but only because the prosecutors failed to ask the right questions or find the right witnesses.

Just keep in mind that you do not have to answer questions about when you drank, where you drank, or how the car got there. You have the right to remain silent.

And never fight the police. You can beat the case in a courtroom. You will never beat the police on the side of the road.