*1 Minnesota, Respondent, STATE of LOGE, Appellant. Mark
Steven
No. C9-98-842. of Minnesota.
Supreme Court
March
driver’s side door. While one officer was officer, talking Loge, the second who standing by passenger was side of truck, bottle, observed which he believed Stuart, Public De- John M. MN State bottle, sticking partially to be a beer out Swanson, fender, Scott G. Assistant State paper bag a brown underneath passen- Defender, Minneapolis, appel- Public side of seat. He ger’s retrieved that lant. bottle, was open had foam on Hatch, Attorney A. Michael MN Gener- the inside. He searched the rest of the al, Attorney Early, James B. Assistant full, truck and one unopened found can of General, Paul, respondent. St. empty beer and one beer can. After the bottle,
second officer found beer first officеr if Loge asked he had been drinking. Loge stated that he had two working way beers while and was on his OPINION Loge home. passed all standard field so- GILBERT, Justice. briety gave Loge tests. officers cita- having proof tions for of insurance and question presents This case for a open violation of the bottle statute knowledge whether element of the speeding. proof but not for The no open crime under the law when the bottle charge insurance was later dismissed. driver is the sole of a motor Loge probable did not raise a cause chal- Appellant Loge vehicle. Mark was Steven lenge stop to either the or the officer’s 2, 1997, September cited on for violation observing оpen actions in bottle on (1998), of Minn.Stat. subd. 8 floor of the truck. which makes it unlawful for of a the driver vehicle, motor when the owner is not pres- The trial on charge bottle took ent, keep “to or allow be in a kept motor place January on Loge testified vehicle when vehicle upon pub- such his, that the bottle was not he did not highway any receptacle lic know in the truck and said was had that taining intoxicating liquors percent to one of the officers. That officer liquors opened.” malt which has been Vio- remember statements. At is a lation of the statute misdemeanor. the testimony, close of the trial court re- See Minn.Stat. memoranda from counsel quested Loge’s trial, After a bench held the district court city question attorney and the imposed that subdivision 3 liabil- “absolute knowledge whether is an element subdi- ity” on the Loge appealed. driver/owner. Both vision 3 bottle statute. of appeals court affirmed the convic- legal attorneys came the same conclu- tion, holding proof required. sion that was open container was the motor vehi- The police trial court found that one of the required. Loge, cle was bottle, officers “observed the neck of the 491, 494 (Minn.App.1999). We sack, wrapped paper which was a brown affirm. being pickup’s under seat the truck September operated by On borrowed defendant.” on an Based whole, go analysis his father’s his pick-up truck to section 169.122 as a job. way on evening Driving alone his trial court held subdivision creates work, liability” home from two stopped by “absolute on driver/owner * ** city police County “inspect Albert Lea on and determine officers whether p.m. 18 at be- there approximately Road 8:15 containers” he appeared speeding. Loge cause to be vehicle in violation of the bottle law got out of truck and found Loge guilty. Loge his stood was sen- state, there is no jail, position days execution
tenced five year, probation knowledge requirement for one stayed, placed plus costs of and fined $150 $32.50. city Loge appealed the verdict. seeking оf his con reversal *3 respondent’s did not file a brief attorney because, argues, the trial court viction Appellate sent a letter the Clerk but erroneously interpret appeals court of stating with the “coneur[red] that he Court 3 of the bottle statute1 ed subdivision Appellant’s rationale in the reasoning and require Loge proof not no reason [was] and therefore there brief keep “to or allow to argues the words a Re- of Minnesota to file unambiguously re kept” implicitly and be published opinion, In a spondent’s brief.” quire a defendant to court of affirmed the decision appeals open container motor vehicle evidence, finding the trial court to attаch. He liability order for of the officers
which establishes that one maintain, “keep” means “to or argues that containing intoxicating bottle saw continue, specified or in a stay cause to passenger seat of liquor underneath condition, position, Loge argues etc.” driving was on a the truck suggests person that a must that definition support Loge’s was highway, sufficient purposely possession. choose to continue at Loge, See 589 N.W.2d 494. conviction. Further, argues that the word “al appeals court of held that The phrase kept” “allow be low” from the truck that the bottle was to,” permit; grant “to license means not a conviction. See required is sustain suggesting awareness at the minimum. id. argues The state that the Loge’s petition for further review 3 creates a of- Attorney then as- strict The granted. -General in 1959 fense. statute was enacted responsibility for this and filed sumed case any not had Attorney and subdivision has substan- respondent’s brief which the change argues, contrary previous to the tive since its enactment.2 General part: kept when Statutes 169.122 reads in in motor vehicle such vehicle 1. Minnesota upon public highway any or is bottle person or Subdivision 1. No shall drink receptacle containing intoxicating liquors liquors percent intoxicating or consume percent liquors or 3.2 malt which has been liquors vehicle when malt motor broken, opened, or the seal or the cоntents upon public highway. such vehicle partially ex- which have been removed person 2. Subdivision No shall have in cept receptacle when such bottle or shall be private possession motor vehicle while in kept in the trunk of the motor vehicle when recep- upon public highway, any or bottle trunk, equipped with a or such vehicle containing intoxicating liquor or 3.2 tacle kept in area of the vehicle not some other opened, percent liquor been malt normally occupied by passen- the driver of broken, or the seal or the contents of which gers, equipped if the motor vehicle is not partially purposes have been removed. For utility cоmpartment section, with a trunk. A "possession" of this means either glove compartment shall be deemed to person that the had actual occupied by area the driver and within the receptacle bottle or or that passengers. sciously exercised dominion and control receptacle. the bottle or This subdivi- over gender specific 2. A 1986 removed amendment receptacle apply to a sion does not throughout references the Minnesota Statutes if that is in the trunk of the vehicle change trunk, but not the substance of the stat- equipped another or that is in 25, 1986, utes amended. See Act of March normally occupied area of the vehicle not 1-4, 444, §§ ch. 1986 Minn. Laws 775- passengers if the vehicle the driver 77. A 1991 amendment instructed the revisor equipped with a trunk. percent of statutes to substitute "3.2 malt be unlawful for Subdivision It shall liquor.” liquor” "nonintoxicaling malt private vehicle or owner of driver, May present See Act of ch. if the owner be not then vehicle, keep or allow to be Minn. Laws the motor “or,” heavily presumption disjunctive separated relies state “and,” intends statute as a “and.” Unlike the word use certain, with to be effective and signifies whole “or” the distinction between two §§ surplusage. long factual situations. We have held that 645.17(2) Orsello, (1998); State v. 554 in the ambiguity absence some sur- (Minn.1996). 75-76 state rounding legislature’s use of the word argues “keep that subdivision 3’s allow “or,” we disjunctive will read it in the kept” language to be must mean more only possible one of the factu- possession of than mere alcohol because al present situations be order for the already subject to lia- owners/drivers See, statute to be e.g., satisfied. Amaral bility posses- subdivision for mere Hosp., Saint Cloud 598 N.W.2d *4 sion, persons to all applies the (Minn.1999); Aberle Faribault Fire argues The state vehicle. further Ass’n, Dept. 230 Minn. Relief to read subdivision 3 as requiring (1950) (“The N.W.2d word ‘or’is a continuing would conscious disjunctive ordinarily refers to differ- make it mere surplusage. alternatives.”). things Accordingly, ent opinion we limit our to the words “to Statutory a legal construction is 169.122, § keep.”3 Minn.Stat. subd. 3. determination this court un reviewed A.A.E., a novo der de stаndard. See In re Further, though even this was a court (Minn.1999). An N.W.2d trial, statute, we note that similar to the analysis of a must begin statute recognizes signifi CRIMJIG 29.30 also the careful and close examination of the statu disjunctive cance the use of the “or” and Orsello, tory language. See at provides separate, for alternate instruc 74. We undertake a review ascer (allowed “(kept) kept).” tions on legislative tain and effectuate intent. See Ass’n, Judges 10a Minn. Dist. Minnesota § If Minn.Stat. 645.16. Guides, Practice-Jury Instruction Misde ambigui statute is “clear and free from all Misdemeanor, meanor and Gross CRIM ty, the letter of the law shall not be disre (4th ed.1999); 29.30 see 10 Minn. JIG pretext under garded pursuing Ass’n, Judges Dist. Minnesota Practice- spirit.” Id. Guides, Instruction Misdemeanor Jury Misdemeanor, Explanatory and Gross Except for search and seizure is (4th 1999) (“[PJarentheses Note ed. indi sues, this is first time we have re options cate factual variations this statute its enactment viewed since * * * .”). prior jury versions years only interpret ago. We are asked instructions, comment noted that the presented. this statute Al under facts judges trial are divided as to whether though poten this statute addresses two required under the statute. tial, alternate involving situations driver * * * Ass’n, Judges See 10a Dist. Minne Minn. “any private motor vehicle when Guides, Practice-Jury sota Instruction upon public highway,” such vehicle is Misdemeanor, Misdemeanor Gross only presented under one these facts. (1989 ed.). The 169.122, M-JIG 3.17 Comment The statute [question comment “[s]inee noted liability for such a establishes driver when knowledge] has not been ruled “keep[s] kept” allow[s] that driver to be courts, upon by appellate containing the Minnesota intoxicating li occupied judge the trial should include omit quor normally within the area according his or her passengers. (emphasis portion the driver and Id. bracketed added). Thus, concepts These own the statute.” Id. reading two alternate are may 3. The use of the word "allow” ord which we decline to address. other implications present rec- then, now, separately it lature addressed each risk included does instruction through portion which reads section subdivisions optional brackets safety by promote highway that defendant knew the an effort to means “[This (bottle) in the (receptacle) decreasing opportunity vehicle.].” Ass’n, Judges Minnesota driving 10a Minn. Dist. and drunken sumption Guides, Practice-Jury anywhere Instruction Misde- open container of alcohol Misdemeanor, M-JIG reading meanor and Gross It is from vehicle creates. clear (1989 ed.); Dist. see also 10a Minn. as whole that the Ass’n, Practice-Jury Judges Minnesota categorically prohibit open bot- intended to Guides, Instruction Misdemeanor tles of alcohol in motor vehicle on (4th Misdemeanor, Gross CRIMJIG 29.30 cir- except road limited 1999) (“[Brackets optional indicate ed. expressly cumstances choices, depending portion element Thus, we find addressed and carved out.4 charged.”). of the statute that has been legislature’s use ambiguity opportunity We take this review “keep.” word Stat. subd. 3 as relates to the only there was
facts
the record where
Loge’s argu
mindful of
We are
*5
sole
the vehicle.
that,
statute,
ment
as
criminal
section
strictly
must be
construed. See
169.122
guided
interpretation
are
of
We
our
Zacher,
v.
504 N.W.2d
473
169.122,
by
section
subdivision 3
the statu-
(Minn.1993). Where
have found a stat
we
in-
tory presumption
legislature
said,
ambiguous,
ute
“if criminal
we have
tends an entire statute to be effective and
liability, particularly gross misdemeanor or
645.17(2).
§
certain. See Minn.Stat.
We
felony liability,
imposed
to be
for con
is
look to all subdivisions of
must therefore
fault,
by
unaccompanied
legisla
duct
together
hеlp
to
deter-
section 169.122
us
tive intent to do so should be clear.” State
legislature
mine whether the
intended to
(Minn.
Neisen,
v.
415 N.W.2d
329
liability under
on a
impose
subdivision 3
1987). However,
we have held that
of
proof
driver/owner
of strict
rule
construction does
1 prohibits the
consumption
Subdivision
possible
assign
this court to
narrowest
in a
vehicle on
motor
to
interpretation
adopt
the statute or to
highway.
See Minn.Stat.
construction that would render the statute
(1998).
169.122,
§
subd. 1
2
Subdivision
meaningless.
or one of its subdivisions
of,
prohibits
possession
the actual
or con-
Zacher,
jority’s interpretation of section 169.122 case the bottle in plain sight and that very implies troubling some and unreason- case, under the circumstance of this able outcomes. (or known) actually knew should have statute, Under subdivision of the crim- open bottle was in the truck. The inal imposed possession anof court finding district made no such nor is open in by person container it our province majority do so. The 169.122, § a motor vehicle. See Minn.Stat. attempts mollify the results of its hold- pos- Possession means actual here ing by saying Loge really this case session of or the do- conscious exercise of knew. While an interesting conclusion on or control minion over container. See part majority, it renders the majority id. The claims because this majority’s holding If unnecessary. already imposes subdivision liability fоr knew, known, reasonably should have knowing of an contain- that this present container was in his vehicle, er of alcohol in a so again do vehicle, majority’s holding is unneces- subdivision 3 is unnecessary. This line of case, sary. In such a there is a showing of reasoning only works in- majority’s knowledge or intent sufficient to sustain terpretation only case where Loge’s conviction interpreting person one When vehicle. more having no requirement vehicle, than one is in the pur- intent. pose of the different subdivisions becomes majority history While the mentions the A passenger may clear. of the application this statute district container alcohol and not have disclosed courts, it fails to import. сonsider its that fact to Clearly the driver. subdivision court, not on binding While we do look passenger. applies to that But it is also practical to the construction of a statute clear that because the passenger concealed determining meaning. officials its driver, this fact from the the driver should Bureau, See Governmental Research Inc. not be held liable. doTo otherwise would Minn., County, v. St. Louis 258 Minn. criminally to hold the driver liable for act intend to commit and judges district court of Minnesota are di- over which he had no control. the case vided about of Minn.Stat. when a container is open and visible in the subd. 3. The Minnesota District passenger compartment of a vehicle and Judges highlighted Association the ambi- passengers none of the possess- shown guity statute when it noted it, owner, driver, ing then the remains CRIMJIG ultimately responsible. Simply because subd. 3 that may application not have a unique pattern fact does make Trial judges in Minnesota are divided as surplusage purposes analy- for the our required whether or not sis. statute, under the early Attorney and an example
The above highlights one of the Opinion General maintains that the lan- majority’s unreasonable results in- guage the statute does not 989a-25, A terpretation. Gen., could be re- Op. Atty. driver held *10 sponsible 5,1960. the passengers for acts of that Jan. Ass’n, recklessly discharge to he must intend Minnesota Judges
10a Minn. Dist. Guides, dispute AA.E. Misde See id. The Praсtice-Jury Instruction firearm. Misdemeanor, required, but M-JIG was not whether intent was meanor and Gross (1989 ed.). injure Later editions continued to intent another specific whether carry knowledge requirement as to the that required. was See id. We observed leaving inclusion the discre optional, its could have language the of the statute Minn. Dist. judge. the See 10a tion of trial impose liability under been read to Ass’n, Practice-Jury Judges Minnesota was dis- circumstance where firearm Guides, and Misdemeanor Instruction however, resulted; injury and an charged Misdemeanor, Preface and CRIM- Gross interpretation such an we noted that ed.1999). (4th division JIG 29.30 Such with statute flicted other that trial of this state indicates the bench produce аnd would unreasonable results. is meaning of the statute’s the Importantly, id. both Dombroski majority cont clear than the much less AA.E., an intent to there needed n ends.2 the criminal sanc- commit act of our earlier majority cites two imposed. would be tions the that support proposition decisions to this limiting analysis its majority, criminal liabili- legislature may impose the case, to the narrow facts this statute knowledge. ty intent or regard implications proceeds undistracted the disagree proposi- I this While do not the language in statute of other contextual tion, the cited cases also demonstrate the this that district courts of and the fact it when is way analyzed we have statutes have on both the state differed is not claimed that or intent application of the While and the statute. liability. impose criminal required majority holding claims that their Dombroski, we noted that only to situations where limited those clearly unambiguously vehicle, they is one there impose its intent criminal manifested this is first time we have also note that statutory incom- liability rape for the question of whether directly addressed the petent regard female without whether for this required or intent was in- knew that the victim accused clarity, lack of statute. Given the obvious competent. See 145 likely holding will majority’s (1920). Here, stat- 985-86 N.W. much wider effect. require knowledge that ute did not incompetent, required but victim was Finally, majority’s holding, we that, in act cоmbina- intent commit an per- on a impose now will status, would consti- tion with the victim’s son, act simply person for an that rape. statutory tute criminal, but also for does not know he is person act the does not even know A.A.E, acknowledged In In we that re committing. court and While the district make a crimi- legislature may person majority everyone seem to assume injuries resulting nally from the liable motor vehicle knows that who drives a regardless discharge of firearm obligated to search entire she to cause in- whether that intended of the vehicle be- intent, passenger compartment but held that some level of jury, we roads, driving the law fore state’s disregard danger, reckless of known driv- imposes requirеment. no Most at 777. While required. See 590 N.W.2d surprised to injury, ers would be discover actor not intend to cause need throughout appellate process. It is further demonstrated in This division was city attorney attorney general argues case when both the this who now agreed the statute re- defense counsel showing requires of intent knowledge. city quired showing attorney position has maintained *11 else their anyone after used vehicle—chil- Mends, dren, spouse they criminally are — of alcohol
liable containers present, regardless of whether
that are containers there. This
they know the operator of a any prudent
also means that carefully vehicle must also check packaged case of trans- before
port and ensure that each container’s seal
is not broken. See
(defining bottle as a container that open, re- partially contents broken).
moved, or has the seal Under majority’s interpretation, all of these
situations would render driver crimi-
nally liable under Minn.Stat. 169.122. a more
Without clear statement law, I this is the cannot
agree with outcome.
PAGE, (dissenting). Justice join
I in the dissent of Justice Paul H.
Anderson.
STRINGER, (dissenting). Justice join
I in the dissent of Paul H. Justice
Anderson. Minnesota, Appellant,
STATE SCAIFE, Respondent.
James Scott
No. C5-99-1769. Minnesota. Appeals
Court of
March May Denied
Review