State v. Busse ( 2002 )

PAGE, Justice

(dissenting).

I respectfully dissent. Although I join in the dissents of Justice Russell Anderson and Justice Stringer, I •write separately to highlight certain flaws in the court’s reasoning. Stated simply, if the court was right in both State v. Stone, 572 N.W.2d 725 (Minn.1997), and State v. Johnson, 598 N.W.2d at 684 (Minn.1999), the court is wrong now. In Johnson, we stated:

We would hardly be consistent to now conclude that even though a tribal member is not required to have a driver’s license at all while driving on a tribal reservation, driving after revocation of a license should be an offense that rises to the level of a “heightened public policy” concern.

Johnson, 598 N.W.2d at 684. We would be no more consistent to conclude here that driving after cancellation as inimical to public safety presents a heightened public policy concern given that, like driving after revocation, it is a subsequent violation committed only after a driver’s license has been canceled because of a prior offense. Yet, that is exactly what the court concludes in this case. The conduct ultimately at issue in Stone and Johnson that is relevant to this case is driving. The conduct at issue here is driving. While the issue in each of the three cases is driving, the subtext for the present case is drinking and driving.

In Stone, we held that driving without a driver’s license in violation of MinmStat. § 171.02 (1996) was a civil/regulatory offense, which the state lacked jurisdiction to enforce against members of an Indian tribe driving on tribal land. Stone, 572 N.W.2d at 731. Thus, under Stone, a tribal member driving on tribal land cannot be required to have a valid Minnesota driver’s license. In Johnson, we held that driving after revocation of a person’s driver’s license in violation of Minn.Stat. § 171.24, subd. 2 (1998), was a civil/regulatory offense, which the state lacked jurisdiction to enforce against tribal members driving on tribal land. Johnson, 598 N.W.2d at 684. If we apply the logic of Stone and Johnson to the facts presented here and do not improperly look to the underlying offense to determine the level of public policy concern, only one conclusion can be reached: the state lacks jurisdiction to enforce its driving after cancellation as inimical to public safety statute, Minn.Stat. § 171.24, subd. 5, against tribal members driving on tribal land.

Because the proscribed conduct here is the same as in Stone and Johnson, the court’s conclusion that the offense here is criminal/prohibitory rather than civil/regulatory is logically inconsistent with our holding in both Stone and Johnson. If the state cannot enforce its prohibition against, driving without a license or its prohibition against driving after revocation against a tribal member driving on tribal land, what possible basis is there for enforcing its prohibition against driving after cancellation as inimical to public safety?¹

The court concludes that, because of heightened public policy concerns associated with Minn.Stat. § 171.24, subd. 5, the statute is criminal/prohibitory and, therefore, enforceable by the state against tribal members driving on tribal land. Yet, the real focus of the court’s attention is the conduct of drinking and driving, conduct that is clearly criminal/prohibitory and which the state has jurisdiction to enforce against members of an Indian tribe driving on tribal lands. While the court spends a great deal of time justifying its conclusion that driving alone creates heightened pub-lie policy concerns, what it is actually doing is using the term “driving” as a substitute for “drinking and driving.” In this case, the fact that Busse is likely to continue to drive after drinking is what makes his conduct inimical to public safety. There is nothing in the record, however, to suggest that Busse’s driving alone makes him more injurious or harmful than any other driver. Although emotionally appealing, the court may not conclude that driving after cancellation as inimical to public safety involves heightened public policy concerns by looking to the nature of Busse’s prior offense. Johnson, 598 N.W.2d at 684.

Without impermissibly looking to the nature of the prior offense to measure the nature of the subsequent offense, Johnson, 598 N.W.2d at 684, there is no logical basis for treating people whose licenses have been suspended or revoked for driving under the influence any different than people whose driver’s licenses have been canceled as inimical to public safety. The underlying concern in each instance is to stop the individual from driving under the influence. The only difference between the three is that each driving-under-the-influence offense conviction results in a harsher sanction. Presumably, the increasingly harsher sanctions are intended to be a progressively stronger disincentive to drive under the influence. First comes suspension,² next comes revocation,³ and, finally, comes cancellation as inimical to public safety.⁴ But it is the driving under the influence that triggers the withdrawal of the offender’s driver’s license for increasingly longer periods of time; it is not driving alone.

To the extent that in Johnson we held that the state had no jurisdiction to enforce the driving-after-revocation statute against tribal members driving on tribal lands, driving after cancellation as inimical to public safety should produce no different result. Suspension, revocation, and cancellation of one’s driver’s license are all, among other things, intended to discourage people from driving under the influence. If driving after revocation, without regard to the underlying offense, did not trigger a heightened public policy concern in Johnson, driving after cancellation as inimical to public safety should not do so here.

In addition, the court erroneously presumes that the only people the state can charge with driving after cancellation as inimical to public safety are people, like Busse, who have multiple driving-under-the-influence convictions. This is a misunderstanding of the law and, thus, does not support the court’s conclusion that driving as inimical to public safety creates a heightened public policy concern. While it is true that the commissioner must cancel a person’s driver’s license as inimical to public safety after the person has been convicted of driving under the influence three times within the past five years,⁵ the commissioner may also cancel a driver’s license as inimical to public safety for reasons unrelated to driving under the influence. Minn.Stat. § 171.04, subd. 1(10). Therefore, like suspension and revocation, cancellation as inimical to public safety does not present the same public policy concern as do penalties related solely to driving under the influence.

The preceding discussion notwithstanding, one final point needs to be made: Minnesota Statutes § 171.24, subdivision 5, by its express terms is not applicable to the facts presented in this case. The statute applies only in instances when the operation of a motor vehicle requires a driver’s license.⁶ Because Busse was a member of an Indian tribe driving on tribal land at the time of the offense, no driver’s license was “required” to operate the motor vehicle. Stone 572 N.W.2d at 731. Thus, Busse’s lack of a driver’s license did not result in a violation of Minn. Stat. § 171.24, subd. 5.

Although cleverly disguised, the court’s objective is transparent. With this decision, the court has accomplished what the dissents in Stone and Johnson could not. I would affirm the court of appeals in holding that Minn.Stat. §§ 171.24, subd. 5, and 171.04, subd. 1(10), are civil/regulatory offenses and, therefore, not within the state’s jurisdiction to enforce against members of an Indian tribe driving on tribal land.

STRINGER, Justice (dissenting).

I join in the dissent of Justice Page.

ANDERSON, Russell A. (dissenting).

I join in the dissent of Justice Page.

1 . One effect of the court’s decision is to create separate classifications for similarly situated people engaging in the conduct of driving, none of whom the State of Minnesota can require to have driver’s licenses. One class is made up of people who have never had driver's licenses and who therefore cannot be prosecuted under the driving after cancellation as inimical to public safety statute. The second class of people, while also not required to have driver’s licenses, happen to have licenses that have been canceled as inimical to public safety and, thus, can be prosecuted under the statute. By virtue of never having had a license, the first class is protected from prosecution under the statute, while the second class is not.

The court points out that the state may deny licenses even to those who do not have them. That observation may well be correct, as far as it goes. In making that observation, however, an important point is missed. There is a distinction to be made, on the one hand, between those who either do not have a license or are not eligible to obtain a license, and those who, on the other hand, do not need a driver’s license in the first instance.

2 . "Suspension" is the commissioner’s temporary withdrawal of a person’s driver's license and privilege to drive in this state under Minn.Stat. §§ 169.121, subd. 8, or 171.18. Minn. R. 7503.0100, subp. 12. A period of suspension may last up to one year. Minn. R. 7503.0300. Driving after suspension is a misdemeanor. Minn.Stat. § 171.24, subd. 1.

3 . "Revocation” is the commissioner's withdrawal of a person’s driver’s license and privilege to drive in this state for a specific minimum period under Minn.Stat. §§ 169.121, 169.123, or 171.17. Minn. R. 7503.0100, subp. 9. A period of revocation may last from 30 days to 5 years, depending on the driving record of the person involved and the underlying offense. See Minn.Stat. §§ 169A.54, subds. 1-5, 171.17; Minn. R. 7503.0800, subp. 2. Driving after revocation is a misdemeanor. Minn.Stat. § 171.24, subd. 2.

4 . "Cancellation and denial” is the commissioner’s withdrawal of a person’s driver’s license and privilege to drive in Minnesota pursuant to Minn.Stat. §§ 171.04, subd. 1(6), (10), (11), or (12), 171.13, subd. 4, or 171.14. Minn. R. 7503.0100, subp. 4. Cancellation as inimical to public safety, see Minn.Stat. § 171.04(10), is presumably indefinite, although reinstatement after cancellation is possible. See Minn. R. 7503.1600. Driving after cancellation is a misdemeanor and driving after cancellation as inimical to public safety is a gross misdemeanor. Minn.Stat. § 171.24, subds. 3, 5.

5 . Cancellation as inimical to public safety is also mandatory when a person has incurred three alcohol-related incidents and a special review has been conducted within 10 years of the third incident or when a person has four or more alcohol- or controlled-substance-related incidents on record. Minn. R. 7503.1300.

6 . Minn.Stat. § 171.24, subd. 5, states:

A person is guilty of a gross misdemeanor if:

(1) the person's driver's license or driving privilege has been canceled or denied under section 171.04, subdivision 1, clause GO);

(2) the person has been given notice of or reasonably should know of the cancellation or denial; and

(3) the person disobeys the order by operating in this state any motor vehicle, the operation of which requires a driver’s license, while the person's license or privilege is canceled or denied.

(Emphasis added.)