Man convicted of DWI, but wasn't driving

a disabled vietnam veteran says he chose to do the right thing after a night of drinking... by no...  More »

a disabled vietnam veteran says he chose to do the right thing after a night of drinking... by not getting on the road drunk. but he was arrested for d-w-i anyway-- and convicted by a judge. antoinette antonio sat down with the man. she's here with an interview you'll see only on 4. antoinette? fidencio francia says he didn't want to put his life -- or anyone else's life in danger by driving drunk. but a judge says the law is clear -- francia is guilty of d-w-i. i didn't wanna hurt anyone... because i felt i wasn't gonna be able to drive safe. fighting back tears-- fidencio francia says he's no criminal. but on august of 2008.. he was arrested for d-w-i after blowing a point .13. then last week.. a judge found him guilty. francia says the conviction is just plain wrong... because he wasn't even driving. i coulda got in my truck and started it and tried to drive away.. but i didn't francia says he drank a jack and coke and two beers at the american legion post 99 in albuquerque. the edgewood man says he knew there was no way he could make it home safely. i could either hurt myself or hurt someone else, and that i didn't want to do. so that was my main purpose not to drive. francia says he got in his truck, placed his keys under a pillow he keeps on the center console, and went to sleep... with the intentions of driving home the next morning. but two hours later an a-p-d officer came knocking on his window -- and did a field sobriety test on francia. he failed and was arrested. if you drink, you drive, you lose... well they gotta add that you cannot fall asleep in your vehicle today we sat down with district attorney, kari brandenburg-- to ask how francia could be charged and convicted of d-w-i -- when he didn't even have the keys in the ignition. well i appreciate that he wasn't driving and putting everyone at risk, but new mexico case law says that if he's in control of the vehicle, meaning he's in the driver seat and has access to the keys and can turn that vehicle on and operate it, then he is in fact guilty of d-w-i. maybe thstate feels that he broke the law but i think, that, i'm very proud of him that he can sleep at night knowing that he made the right choice and he didn't hurt anybody a judge agreed with the district attorney-- citing case law as the reason for finding francia guilty. francia has not been sentenced yet. he faces up to 90 days in jail. his attorney says he will be filing an appeal.  « Less