State v. Knittel

County are to actions Oliver loading directly into dumped could statutory procedures with comply delivery to direct pockets for ultimate Furthermore, if distributing the funds. Later, the ore be- cars. when railroad completed is no these actions are not there were es- washing plants pure, came less adequate relief in the plain, speedy, and impurities, so to remove certain tablished County law for Morton ordinary course of to their location. the ore was hauled on the fore- school districts. Based developed on the and the industry the taconite established, writ of manda- going, we conclude that the Range, crushers were Iron by the district properly coal mus was issued exist in the in the fashion as much dumping took court. industry, where initial cir- the facts and

place. Depending is af- district court case, the particular cumstances of each firmed. located at each or tipple could have been any places.” of those J., PAULSON, ERICKSTAD, C. WALLE, JJ., Judge’s to his Regarding the reference and VANDE PEDERSON degree to a we are experience, we note that concur. environment prisoners

all of our own as such our communica-

experiences, and frequently involve and to some extent

tions experiences. Judicial previous

reflect our vacuum and are not rendered in a

decisions involved, articulating thought process apt to surface.

previous experiences are instance, to his Judge’s reference this Dakota, of North The STATE accepted experience clearly supported Appellant, Plaintiff and various “tipple” has fact the term depending on the meanings is used. which it KNITTEL, Terry Defendant Dirk Appellee. that the trial

We cannot state No. 765. experi Cr. referring personal to his erred in regarding the mean and observations ences Dakota. of North “tipple.” term July statutory Furthermore, judge’s a trial subject provisions construction is not 52(a), Dakota Rules Civil

of Rule North

Procedure. judge’s ulti- agree with the district

We tipple at the exists

mate decision that unloading point Plant, the Power

Minnkota mining opera- coal

of the Baukol-Noonan

tion. tipple within

Because there is a Baukol-Noo-

meaning 57-62 at the of Ch. mine, County 15 miles of Morton

nan within districts, provisions of

and the school NDCC, 57-62-02(3)(b), regarding development of the coal

the distribution There is no discre- operative.

funds become County’s part to determine

tion on Oliver exists, only tipple

whether or Schnell, Atty., Mandan,

Richard L. State’s plaintiff appellant. for Hebron, Schwartz, Draeb for defend- & appellee; argued ant Ronald Schwartz, Hebron.

ERICKSTAD, Chief Justice. Dakota, appellant, The State of North appeals acquittal from a en- County tered with Increased County Jurisdiction for Morton in favor of defendant, Terry Appeal dis- Knittel. missed. 16, 1980, pleaded

On October Knittel driving guilty to while under the influence conviction, of alcohol. Pursuant to his High- Driver’s License Division of the State way Department “Opportuni- sent notice of ty Hearing” on the of his license to Knittel at his correct address dated October 1980. An affidavit of mailing part this notice is of the record. 12, 1980, reply no On November when was received, suspension suspending an order of days his license for 49 was sent to Knittel. An affidavit of this order is also part a of the record.

Subsequently, on November driving through stopped Knittel was stop sign. driving A check of his record suspended. showed failing a result he was issued citations for stop stop sign motor vehicle while his driver’s license was suspended. charge

Knittel had a trial on the latter on 5,1981. January depu- State called ty sheriff who issued the citations. The hearing, order of computer recording printout Knittel’s into evidence. were introduced case, At the close of the State’s complaint on the moved to dismiss the prove ground that failed to its case; alleging specifically, (1971) (plurality opinion), while a dismiss- Knittel received a notice prove may not mid- suspended to be al or do so. Where a his license was or about ground, and that he could have trial dismissal suspen- not, of his simply the issue that the defendant correct argued the affidavits sion. The State cannot be convicted of the offense of that he proof were sufficient charged, 358, S. Jenkins U.S. [U. v.] [420 opportunity 1006, for a (1975)] received es- 43 L.Ed.2d 250 though and the order of even prosecution tablishes that further is mail. The regular the notices were sent Jeopardy Clause.” barred the Double 29, January court continued the case until 2145. 432 U.S. at S.Ct. at 1981, could be so briefs submitted guarantee constitutional The United States motion motion. The court denied Knittel’s found in the Fifth against jeopardy double stand when it reconvened. Knittel took the Amendment, applicable is to the states that he not receive the and testified did Four- through process the due clause of the opportunity hearing or the notice of the Vitale, 447 teenth Amendment. Illinois v. finished suspension. order of When Knittel 410, 2260, 2264, 65 L.Ed.2d 100 S.Ct. U.S. mo- testifying, defense counsel renewed the tion to dismiss on the of a lack of due basis transcript of From an examination of the process asserting not received Knittel had trial, we that the trial court conclude hearing or opportunity for a notice because granted Knittel’s motion to dismiss time, suspension. At this the order no- believed that Knittel did not receive it the trial motion to dismiss and hearing or tice “Judg- court entered its entitled that this lack and Acquittal”, paragraph ment of last process of deprived notice him of due which reads: said: law. The court ORDERED, “IT HEREBY that IS to have the failure of an individual “But be, hereby within action the same request is a total notice to merits, upon the the defend- DISMISSED process pursuant to our 14th denial of due hereby ants bail bond exonerated individual depriving an Amendment discharged.” the defendant being the liberty, liberty fact of his appeal now seeks from The State an offense charged can be with that he Flohr, N.W.2d judgment. offense and has to for that and he stand (N.D.1977), said, question we “[t]he offense. I guilty found of that could be be ‘acquittal’ an is not to what constitutes just goes beyond question think it judge’s ruling. by the form of a controlled granting privilege to or not whether Rather, one must look [Citation omitted.] right privilege is a or the drive drive ruling, judge’s at the substance depriv- right, but I think that and not label, and whether whatever its determine through the crimi- liberty him of his represents it of some actually resolution prosecuting him thereafter nal or offense all of the factual elements of the privi- or complying right for not with charged.” N.W.2d away. being lege to drive taken Court, The United States any would indication “If there 23, States, in Lee v. United any has notice individual received an 2141, (1977), might 52 L.Ed.2d 80 said: effect, though it even through door of Section— the or- the back question is whether “The critical license has that his prosecu- contemplates an end to all Subsection der forthwith suspended, he doesn’t offense the defendant for the been tion of hearing, I think that invariably attempt request ruling charged. A mistrial right or waive deny his to contest re-prose- grounds consistent with rests appears in this case Jorn, But it cution, any notice. States v. see United neither facts have shown 27 L.Ed.2d 91 S.Ct. ground; proc- the notice of intention to nor the constitutional a lack of due did, however, ess. reach a factu- order of was received al determination that Knittel had not re- defendant in this matter.” ceived notice of the Appawoo, 553 F.2d United States or of the (10th 1977), the United States Cir. To determine whether or not this factual Tenth Circuit al- Court of for the reprosecution determination bars government appeal “judg- from a lowed a clause, because of the double acquittal” entered ment of must first determine whether or not the evidence. The court after it had received court’s conclusion of law was errone trial court said: ous or correct. Were the trial court incor given consideration “We have careful process re rect in its conclusion that due to United States v. Martin Linen notice, quires actual the factual determina U.S. issue of whether of the or not tion 642, L.Ed.2d wherein the Court con received actual notice would be irrelevant. sidered application jeop the double circumstances, Under such the State could ardy judgments acquittal. clause to properly appeal the dismissal and Knittel Fay See also United v. and Tier States reprosecuted violating could be the without nan, (10th Cir.), 553 F.2d 1247 and the double v. clause. United States cases cited therein. As indicated in Urit- Gonzales, supra, 617 F.2d at 1362. If the Co., Supply ed v. Martin Linen States in its that due court were correct conclusion neither the form of the order entered sending process requires more than judge terminology nor the used mail, findings by regular its factual that is determinative. Thus neither the form Knittel did not receive notice would bar of the order nor its recitation that it is an “resolution, reprosecution as this would a also, ‘acquittal’ controlling. United See not, of some or all of the factual correct or 332, Wilson, States v. 420 95 U.S. S.Ct. charged.” United elements of the offense 232; v. L.Ed.2d States United v. Martin Linen States Sisson, 267, 2117, 90 26 1349, 1354, 51 L.Ed.2d Court, in Martin L.Ed.2d 608. The Linen Supply, referring to the fact after control, ‘Rather, form does not said: we This case involves a collateral attack on ruling of must determine whether the the the determination made the Driver’s label, judge, actually repre whatever its Highway License Division of the De- State resolution, not, sents a correct or of some partment suspend Knittel’s driver’s or all of the factual elements of the of suspen- the license. Knittel contends ” charged.’ fense F.2d at improper sion was as the method of service hearing opportunity for the notice A like result was reached in United States upon him was deficient and that the driv- Gonzales, (9th 1980), v. 617 F.2d 1358 Cir. jurisdiction er’s license division lacked over den. - U.S. -, cert. him because of that deficient service (1980), L.Ed.2d 129 where the court said: suspension was void. We hence its order of “Rather, clearly the record before us agree. demonstrates that the order was based on grounds arising from constitutional the question that due beyond It is now unavailability potential material wit- opportunity for process requires notice and Appawoo, nesses. v. See United States suspend hearing the a a before State (10th 1977). The 553 F.2d 1242 Cir. ac- emergency situa except driver’s quittal therefore was in substance an or- Sinner, 207 N.W.2d tions. State v. dismissal, appeala- der of and as such is (N.D.1973). Hagstrom, 274 In ble.” 617 F.2d at 1362. (N.D.1979), we held that N.W.2d receipt by the present prove In the court not need to case the trial did suspending Knittel’s motion to dismiss based of the order driver the opportunity if sent operating regu- mo- prosecution license in a mail; delivery lar the driver’s but constructive while tor vehicle however, Hagstrom, opportunity notice of for a suspended. not meet received notice intention to the standard of the due

driver had opportunity license and for a clause of the Amendment of Fourteenth United hearing. States Constitution. Where stat- subject possible constructions, ute is to two present case the trial deter- court one which of doubtful constitutionality mined, evidence, after submission of not, must and one which is the latter not receive Knittel did either the notice of Howe, adopted. N.W.2d State v. opportunity for a the order (N.D.1976). Accordingly, construe disposed Hagstrom require statute to than more constructive suspension question, we are con- hearing. significance today only cerned with the the receipt of notice of Vehicles, In Fell Bureau of Motor hearing. Knittel’s license was App.2d (Ct.App. 283 N.E.2d 825 Ohio pursuant 39-06.1-10, N.D.C.C., to Section 1972), cert. 95 S.Ct. den. 419 U.S. part which as follows: reads (1974), 42 L.Ed.2d the Ohio Court of . pro shows of a

“1. . .. When record held that actual notice precedent the licensee has an accumulated posed suspension was a condition point points, of twelve or more total effect. This hold taking the basis of assigned on the schedule Ohio accepted by was not another in subsection 3 of this sec- Ryan contained v. appeals in another district. An tion, authority notify shall the li- drews, the N.E.2d App.2d 50 Ohio 361 to of its intention the censee (Ct.App.1976). Ryan, the court held 1089 In operator’s license and of the availabili- that actual was not a condition notice ty hearing. of an administrative If the notice was precedent and that actual not request makes a written licensee required to when driver refused claim hearing days within ten after suspension containing the certified letter notice, hearing the shall be held and, furthermore, neglected to notice in applicable provi- in accordance with the the her new address. 361 form Bureau of chapter sions of 28-32.... Dept. 1086. v. N.E.2d In McIntee ^[******] Pub. Safety, 279 N.W.2d (Minn.1979), Supreme Minnesota said: the Court of suspension A shall be to “5. deemed cases, “In these the accordance with have commenced when the order of is upon Mclntee suffi- service notice licensee suspension is delivered the essence, he, the cient if in refused certi- depart- his address of record the at mail, if it is insufficient the fied but under this delivery ment. Constructive merely undelivered.” certified mail was occurring considered section shall be as 820. N.W.2d at deposit after forty-eight proper hours 10(1) in the mails.” § State, 39-06.1— In v. 443 S.W.2d Simmons (Tex.Cr.App.1969), ap- of criminal the court specify by does not This section could not be peals held that the defendant manner the notice of what motor vehicle operating convicted of suspension and the notice of shall when there suspended while his was license Hagstrom, be sent to the licensee. su signed receipt showing sending post was no office pra, we held that notice of the hearing, though even regular delivery mail was as of notice of by sufficient sent was have been Legislature provided the constructive notice shown to address delivery of the notice of in Sec certified mail to the the 39-06.1-10(5), returned to sender tion N.D.C.C. and the letter was Subsection marked, “moved, be left no address.” 39-06.1-10 could read to in delivery of the notice of at 854. clude constructive S.W.2d Amend- jeopardy clause of the Fifth ble Thom rejected in v. was This result Constitution of the United States (Ct.App. ment P.2d 937 as, Wash.App. through the to the states Thomas, Washington applicable which is Court 1980). the Fourteenth clause of process could due the defendant held that States Constitu- while his license United Amendment convicted of Linen not receive v. Martin though he did tion. United States even 1354; at P.2d at 940. at suspension. supra, Vitale, supra, to be similar holding appear This Illinois supra, Hagstrom, holding may reprosecuted, our in State Knittel not 197, except the court be dismissed. appeal 274 N.W.2d must State’s following Washington added appeals of herein, appeal stated For the reasons by regular mail “[sjervice qualification: acquittal is dismissed. from opportu notice and an furnishes reasonable heard, penalty is a where the nity to be WALLE, PAULSON VANDE 610 P.2d at 940. The misdemeanor.” JJ., SAND, concur. not a notice of indicate whether or prior was sent an Justice, PEDERSON, concurring in the suspension. The Wash to the notice of result. a hear provide do for such ington statutes hearing prior clause notice of that the double agree I R.C.Wash. 46.20.322(1).1 939; against 610 P.2d at proceedings any further prevents and, accordingly, appeal should 29-28-35, NDCC, ap- be dismissed. Section of the United court, nevertheless, to this parently requires prose a criminal has said that when States court. Because point out errors suspension of cution be based privilege is a license, process requires no a driver’s due requires suspension by the State right, its opportunity for a ex tice and an Legis- as such due is Bell v. cept emergency circumstances. is all that lature. Constructive Burson, obliga- Legislature —that agree do not While we L.Ed.2d court. on this tory on the trial courts and require actual no states which with those precedent tice of as a condition will, I’m majority opinion in the The dicta we do that notice to that believe any- afraid, as an invitation be construed sent of an problems to claim with driver’s license one guarantee regular mail is insufficient notice. An get actual that he or she presumption of re process when the due sus- highway commissioner order 31-11-03(24), N.D. ceipt raised driving privileges in the pending rebutted, C.C., especially period when the Legislature, which is sent authorized day for suspension may be extended one involved, If we is not void. the driver day driver fails to surrender each hold, ought to wait until going to so are prosecution may criminal license and a collateral, direct, challenge. we have a 39-06.1- based such a § license). (failure to surrender N.D.C.C. concluded, trial court’s de- Having so no- that Knittel did not receive

termination factual ele-

tice was a determination this factual

ment of the offense and hence prohibits by the trial court

determination of the dou-

reprosecution of Knittel because Suspension cases, Driver’s of Motor Vehicle tion or License, on related Suffi- 1. For an annotation see. A.L.R.3d, p. 427. ciency Hearing Revoca- Before of Notice

Case Details

Case Name: State v. Knittel

Court Name: North Dakota Supreme Court

Date Published: Jul 15, 1981

Citation: 308 N.W.2d 379

Docket Number: Cr. 765

Court Abbreviation: N.D.