State v. Mayland, 2017 ND 244

Officer Hubble responded to a domestic disturbance at Mayland’s home and saw Mayland approach a vehicle in the driveway, place clothes inside, get into the driver’s seat, and sit there.
Mayland was charged with actual physical control while under the influence under N.D.C.C. § 39-08-01, alleged as a fourth offense (class C felony).
Defense and prosecution agreed prior convictions would not be disclosed to the jury; Mayland stipulated that, if convicted, the offense would be treated as a fourth offense.
The defense requested omitting “fourth offense” language from jury instructions and exhibits; the court confirmed the stipulation on the record with Mayland’s assent.
At trial the jury convicted Mayland; on appeal he argued (1) the stipulation was an insufficient waiver of his right to a jury determination on prior convictions and (2) the driveway was private and outside the statute’s scope.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant’s stipulation waived jury determination of prior convictions	State relied on the parties’ stipulation and prosecutor’s position that priors were resolved for sentencing	Mayland argued the on-the-record exchange did not constitute a valid waiver of his constitutional right to have a jury determine prior convictions	Court held the stipulation cured any need to submit priors to the jury; defense requested exclusion so no preserved error; no obvious error
Whether N.D.C.C. § 39‑08‑01 covers private driveways	State argued § 39‑08‑01 must be read with § 39‑10‑01, which extends DUI offenses to “elsewhere,” including private property open to public access	Mayland argued a private driveway (per statutory definition) is excluded because it’s private and not a public access area	Court held private driveways can be within § 39‑08‑01 when they are private areas to which the public has a right of access for vehicular use; jury could find driveway was such an area

State v. Thompson, 504 N.W.2d 838 (N.D. 1993) (alternative grounds doctrine for avoiding constitutional ruling)
State v. Saul, 434 N.W.2d 572 (N.D. 1989) (stipulation to prior convictions makes submission of priors to jury reversible error)
Wiederholt v. N.D. Dep’t of Transp., 462 N.W.2d 445 (N.D. 1990) (§ 39‑10‑01’s “elsewhere” extends DUI/physical control offenses to private property)
State v. Novak, 338 N.W.2d 637 (N.D. 1983) (similar holding that actual physical control applies on private property)
Brewer v. Ziegler, 743 N.W.2d 391 (N.D. 2007) (confirming actual physical control offense applies on private property)
Fetzer v. Director, Dep’t of Transp., 474 N.W.2d 71 (N.D. 1991) (private residential/development locations can fall within statute when open to public use)