State v. Busse

¶1(dissenting).

¶2I 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.

¶3Johnson, 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 Stoneand 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.

¶4In 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 Stoneand Johnson to the facts presented here and do not improperly look to the underlying offense *94to 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.

¶5Because the proscribed conduct here is the same as in Stoneand Johnson, the court’s conclusion that the offense here is criminal/prohibitory rather than civil/regulatory is logically inconsistent with our holding in both Stoneand 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

¶6The 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.

¶7Without 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 *95suspension,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.

¶8To 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.

¶9In 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.

¶10The 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 *96driver’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.

¶11Although cleverly disguised, the court’s objective is transparent. With this decision, the court has accomplished what the dissents in Stoneand 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.

¶12I join in the dissent of Justice Page.

¶13I join in the dissent of Justice Page.

¶22(dissenting).

¶23I join with Justice Russell Anderson and Justice Page in dissent, but I write separately to emphasize my concern for the departure the majority opinion represents from the clear legal principles established by this court so recently in State v. Stone, 572 N.W.2d 725 (Minn.1997) and State v. Johnson, 598 N.W.2d 680 (Minn.1999). In a nutshell, for two principle reasons the analysis of the majority simply does not support its conclusion.

¶24First, the majority reviews at length Busse’s DWI violations in an apparent effort to characterize him as a public threat because of his propensity for driving while intoxicated. But he has paid his price for those offenses, and while tantalizing to snare the unwary1 into believing that he once again is before the court for this predilection, he is not. The sole charge against him before the court now is driving after cancellation of his license as inimical to public safety. The reason the majority would prefer to focus on driving while drinking charges however, seems quite obvious. The majority claims that in Johnsonwe did not intend to preclude looking at the substantive aspects of a prior offense to determine whether it raises heightened public policy concerns as to the offense currently before the court, and that our language in Johnsonwas “decidedly tentative” in that respect. I disagree. Our ruling in Johnsonwas clear and unequivocal — we held that because the prior offense carries its own sanction, fairness dictates it not again be used to determine the sanction for the current-and substantially different — matter before the court, Johnson, 598 N.W.2d at 684. Our language in Johnsonwas a warning that the very step the majority is now taking *97could — and in the majority ruling now does — lead to sanctioning Busse for a second time for his driving while drinking offenses. The majority’s analysis is particularly perverse when it relies on Stone: “[W]e follow Stone’s direction to also consider the extent to which the activity directly threatens physical harm.” If it followed Stone’s direction however, it would come to just the opposite conclusion, because the “activity” here was driving after cancellation-conduct that hardly threatens physical harm. It is noteworthy that the arresting officer apparently did not think so either, as he did not arrest Busse at the time he observed him driving, but rather hours later when Busse was sitting benignly as a passenger in a car driven by a friend. There is no evidence of alcohol involvement on either occasion.

¶25Second, the majority fails to answer the point we made in State v. Johnson and repeated in the dissents in which I join: if, as we held in State v. Stone, a tribal member is not subject to state traffic laws requiring a driver’s license while driving on his reservation, under what possible reasoning can that tribal member be subject to state traffic laws for driving after cancellation of his unneeded license? I assert that if this question cannot be answered, and from the failure of the majority to answer it, it appears that it cannot, then the fundamental principle of the majority’s logic fails, because the “crime” as to which he is charged is not a crime at all.

¶26PAGE, Justice (dissenting).

¶27I join in the dissent of Justice Stringer.

¶28ANDERSON, Russell A., Justice (dissenting).

¶29I join in the dissent of Justice Stringer.