*1 arresting when found unconscious WAHPETON, In Buck v. North Dakota State
officer. Plaintiff CITY OF (N.D. Comm’r, Appellant, Highway arresting 1988), officer held that grounds to believe the de reasonable had DESJARLAIS, Cheryl Ann physical in actual control even fendant was Appellee. Defendant and here, parked, though, the vehicle off, lights but key No. engine were Cr. ignition. in the Dakota. Supreme Court North police of a officer The observations July grounds reasonable need establish for the sufficient to convict not be being physical control while actual Goeman, the influence. See State (N.D.1988). All is
required is that the facts circumstanc- knowledge police a officer’s within
es a prudent furnish with rea-
“would believing grounds
sonable Delvo, at 292. See also
has occurred.” Id.
supra,
The officer observed a parked on a street illegally vehicle hours; early morning key in the
in the signs
ignition; the and scents well-known intoxication, performance of poor sobriety designed gauge
field tests intoxicating liquor person. on a
influence of circumstances, say these we cannot
Under hearing as matter officer erred arresting determining law grounds
officer had believe reasonable physical control
that Wolf was in actual under the in violation influence
NDCC 39-08-01. suspension is
Accordingly, license Wolfs
affirmed.
ERICKSTAD, GIERKE, C.J., and MESCHKE, JJ.,
VANDE WALLE and
concur.
Department charged, by uniform traf- driving complaint, fic with the offense suspension/revocation in violation of under Wahpeton City Ordi- Section 5-1506 of pleaded guilty Desjarlais nance.1 and a trial date was scheduled. 13, 1989, prior to the scheduled On March date, prosecuting attorney for complaint charg- Wahpeton issued a formal Suspen- ing Desjarlais “Driving Under for the arrest was that sion.” The basis resident, Desjarlais, did not a Minnesota have a Minnesota driver’s license due valid 3, 1988, February driving under the to a influence conviction Minnesota. trial, city At entered as an exhibit a copy Desjarlais’ Minnesota driv- certified record. The record listed the er’s license license as status of her Minnesota driver’s “Revoked”, previous due to the DUI con- municipal judge viction. The court found Desjarlais guilty suspen- accordingly. Des- sion and sentenced her appealed city jarlais subsequently court county trial. decision to the court for a new date, However, prior to the scheduled trial city Desjarlais stipulated to the avoiding a formal facts of the case thus county trial in the court. county city The court held that Firm, Lies, Wahpe- Bullís & Grosz Law prove Desjarlais failed in its burden to ton, City Attys., appellant; plaintiff guilty beyond reasonable doubt argued by Richard W. Grosz behalf Desjarlais’ suspension
John I. Allen.
revoked, rather than
Minnesota license was
(argued), Wahpe-
David John Haberman
court, quoting
suspended. The
ton,
appellee.
for defendant and
Brude, 222
pointed out the definite
between
distinction
GIERKE, Justice.
stating:
“suspension”
by
and “revocation”
appeals
City Wahpeton
The
from a
suspension and
“The distinction between
county
Cheryl
found
these sections
revocation under
[N.D.C.C.
Ann
39-06-23(2)
39-06-23(3) is that a
]
§§
suspension.
remand.
We reverse and
specified peri
for a
suspension is effective
od,
24, 1989,
continues until such
January
ar-
while a revocation
On
Wahpeton
application
as a new
has been sub-
rested
Police
time
officer of
nance states
Section 5-1506 of the
"5-1506 PENALTY FOR
LICENSE
39-16 and 39-16.1 and NDCC section 39-06.1-
11 or
"1.
equivalent
******
Except
IS
SUSPENDED
pertinent part:
provided
ordinances of this
DRIVING WHILE
OR REVOKED
NDCC
city,
chapters
Ordi-
any
way
lege
in this
public
of Class
so to do is
or on
[******]
has a
who
public
while that
B misdemeanor."
drives a motor vehicle on a
suspended
of access for vehicular use
private
person’s
or revoked is
areas to which the
license or
privi
high
must determine
mitted,
and a license issued.”
acquittal,
ruling constituted an
that it:
stated
is an order
appealable or
which is not
City is
“[Ajppears quite clear
label,
which,
the same
regardless of its
alleging that there was
information.
quashing
order
the other
effect as an
license. On
defendant’s
hand,
proof
submitted
phrased its find
Although
trial court
li-
the defendant’s
not show that
does
mere use
guilty”,
“not
ings in terms of
*3
appears
It then
‘suspended’.
cense was
the action
does not establish
of those words
prove all the
City has failed to
that the
Melin, 428
acquittal.
v.
as an
State
of the offense....
elements
essential
denied,
227,
229
cert.
N.W.2d
unambiguous
is clear and
complaint
The
367,
942,
L.Ed.2d
109 S.Ct.
102
488 U.S.
separate
is
charges a crime that
in that it
supra,
in
As this court stated
Flohr,
of
while a
from that
and distinct
259
at 295:
N.W.2d
person’s license is revoked.”
question
constitutes an ‘ac-
“The
of what
Thus,
city
that the
county court found
the
quittal’ is not to be controlled
Desjarlais guilty
in
to find
failed
its burden
ruling.
judge’s
United States
form of a
and therefore
beyond
reasonable doubt
2117,
Sisson,
267,
26
399
90 S.Ct.
v.
U.S.
guilty”
“not
of the
that she was
concluded
(1970). Rather, one must
L.Ed.2d 608
judgment
It is from this
alleged offense.
judge’s
of the
rul-
look at the substance
Wahpeton appeals.2
city
the
of
that
label, and determine
ing, whatever its
requests this court to dismiss
represents a resolu-
actually
it
whether
ground
on the
that the
City’s appeal
the
ele-
some or all
the
tion of
of
factual
constitutes an ac-
judgment
ments,
charged.
the
United
of
offense
by
appealed
quittal and therefore cannot be
Co.,
Supply
430
v. Martin Linen
States
hand,
City
the
City.
On the other
1349,
564,
642
97 S.Ct.
51 L.Ed.2d
U.S.
judgment
of the trial
contends that
(1977).” [Emphasis added].
of the com-
court constitutes a dismissal
memoran-
A
of the trial court’s
review
appealable under
plaint and is therefore
clearly indicates that the trial
opinion
dum
29-28-07(1),
Section
N.D.C.C.
resolving “some or all the
court was
charging
complaint
City contends that the
charged.”
of the events
factual elements
“driving
suspension”
Desjarlais with
judge’s opinion contained
adequate- While
sufficiently phrased
was
so as
indicating
“failed to
“driving
language
of
ly apprise her of the offense
the of-
essential elements of
prove all the
under revocation.”
fense”,
court’s decision
believe that the
we
action,
City In a criminal
complaint
premised on an ill-worded
was
expressly
right
appeal
only such
of
as is.
“driving
charged Desjarlais with
un-
Flohr, 259
conferred
statute.
State
in
Minneso-
suspension” when
fact her
der
(N.D.1977);
295
Section
N.W.2d
following
lan-
ta license was revoked.
29-28-07(1),
28-07(1), N.D.C.C. Section
opinion leads
guage from the trial court’s
[City] can
provides
the State
N.D.C.C.
to our conclusion:
quashing an information
appeal “an order
general
complaint
“It is a
rule that
An
thereof.”
any
or indictment or
count
distinctly
the facts so
must set forth
complaint has
dismissing
order
a criminal
give
accused of the
to advise
quashing an
same effect as
order
opportunity
prepare
his
him a
appealabili
purposes
information for the
fair
defense,
particularly that a conviction
so
by appealed
ty, and can therefore be
prose-
acquital
would bar another
29-28-07(1),
or
N.D.
City pursuant to Section
[sic]
so clear-
for the same
C.C.; Flohr,
at 295.
cution
supra, 259 N.W.2d
dismissing
dismissing
complaint. An order
appeal
Although
city Wahpeton
cannot
complaint
an order
has the same effect as
judgment
[State
from a criminal
indictment,
1988)
appealable
(N.D.
quashing
which is
],
Hogie,
as dis
N.D.C.C.;
29-28-07(1),
State v.
Section
opinion
consider the
our
cussed later in
(N.D.1977).
Flohr,
to have been an order
effect of this
may
at
Mere de-
ly
supra,
that the Court
determine
692-93.
support
fects, inaccuracies,
facts stated
a conviction.
or
in a com-
omissions
plaint
subsequent pro-
do not affect
against a
Preparing for a defense
result,
ceedings, unless as a
no offense is
suspended,
while license was
revoked,
charged. Jelliff, supra,
could well
al for an sub- embarrassment, expense
jecting him to in a compelling ordeal and him to live anxiety
continuing state of and insecuri- enhancing possibility
ty, as well though may innocent he
that even be guilty.
found States, v. United U.S.
Green
223-24,
(1957). I affirm because our statute would appeal by prose authorize an
does not to review an after trial and
cution Jeopardy the Double Clauses bar judicial action.
such
Therefore, respectfully I dissent.
IMPERIAL & INDEMNITY CASUALTY
COMPANY, Appellant, Plaintiff and
GENERAL CASUALTY COMPANY OF
WISCONSIN, Appellee. Defendant and
Civ. No. 900071.
Supreme of North Dakota. Court
July Smith, Kirmis, Bis- Bolinske &
Zuger, argued marck, plaintiff appellant; for Smith, Bismarck. by Thomas 0. P.C., Bismarck, Lawyers, Trial Bucklin argued appellee; defendant and Bormann, Bismarck. Clark J. WALLE, Justice.
VANDE Indemnity Company Casualty Imperial & Company Casualty (Imperial) sued General (General) for reimbursement of Wisconsin Imperial paid to its of no-fault benefits insured, Kulig. parties filed Anthony summary judgment. The cross motions for summary judgment district court entered