City of Bismarck v. Hoopman

• Court: North Dakota Supreme Court
• Writing for the Court: ERICKSTAD
• Citation: City of Bismarck v. Hoopman, 421 N.W.2d 466 (N.D. 1988)
• Decision Date: 29 March 1988
• Docket Number: Cr. N
• Parties: CITY OF BISMARCK, Plaintiff and Appellant, v. Wesley W. HOOPMAN, Defendant and Appellee. o. 870333.

Page 466

421 N.W.2d 466

CITY OF BISMARCK, Plaintiff and Appellant, v. Wesley W. HOOPMAN, Defendant and Appellee.

Cr. No. 870333.

Supreme Court of North Dakota.

March 29, 1988.

As Corrected May 9, 1988.

Pulkrabek & Tuntland, Mandan, for defendant and appellee; argued by Thomas M. Tuntland.

ERICKSTAD, Chief Justice.

In this appeal we are asked to determine whether or not the City of Bismarck (City) may appeal to county court from a municipal court's memorandum decision dismissing the City's complaint against Wesley Hoopman. Hoopman was arrested for being in actual physical control of a vehicle while under the influence of alcohol in violation of Bismarck City Ordinance 12-10-01.

The City appealed from the dismissal of the complaint against Hoopman to Burleigh County Court. The Burleigh County Court dismissed the City's appeal after concluding the City had no authority to appeal from a dismissal of its complaint. We reverse and hold that the City has a right to appeal pursuant to section 29-28-07(1), N.D.C.C., when the complaint alleges conduct violative of a city ordinance which is also expressly prohibited by state statute.

The facts leading to Hoopman's arrest are undisputed. Hoopman was asleep behind the steering wheel of an automobile parked in a private parking lot with the key in the ignition when a city police officer discovered him. The police officer awoke Hoopman and asked him to perform certain field sobriety tests. Based on Hoopman's performance, the city police officer arrested Hoopman for actual physical control of a motor vehicle in violation of Bismarck City Ordinance 12-10-01. ¹

The municipal judge dismissed the City's complaint in a memorandum opinion. ² The only issue we consider is the City's right to appeal from the dismissal of the complaint against Hoopman to Burleigh County Court. Section 29-28-07(1), N.D.C.C., states:

"29-28-07. From what the state may appeal. An appeal may be taken by the state from:

1. An order quashing an information or indictment or any count thereof."

We have previously ruled that a motion to quash an information and a motion to dismiss an information are substantially equivalent, and an order which has the effect of quashing an information is appealable. State v. O'Boyle, 356 N.W.2d 122, 123 (N.D.1984); State v. Hanson, 252 N.W.2d 872, 874 (N.D.1977); State v. Jelliff, 251 N.W.2d 1, 4 (N.D.1977). We have also pointed out that "there is no real distinction between a criminal information and a criminal complaint under our law" for purposes of appealability under section 29-28-07(1). State v. Hart, 162 N.W.2d 499, 500 (N.D.1968). Thus we have construed section 29-28-07(1) to authorize appeals from a dismissal of an information and the quashing of a county court complaint. We have liberally construed section 29-28-07(1) to accommodate the "intended uniformity of practice and procedure" between district and county courts. Hart, supra, at 500. Adhering to this view, we believe section 29-28-07(1), N.D.C.C., authorizes a city to appeal from dismissal of its complaint when the complaint charges the defendant with an act proscribed by city ordinance which is also proscribed by a state statute. ³

In City of Minot v. Knudson, 184 N.W.2d 58, 59 (N.D.1971), we said:

"When a city ordinance prohibits an act which is also prohibited by state law and the commission of which provides a penalty which may include incarceration, criminal procedure should apply to the municipal court and the city be allowed to appeal from an adverse decision quashing a complaint."

Knudson involved an appeal by a city from a district court order quashing the city's complaint. We allowed the city to appeal in Knudson to promote uniformity of criminal procedure between city and county courts. Our decision today is another step in the same direction. By giving the terms "state," "information," and "indictment" broad meaning, we permit appeal by a city which will contribute to uniformity of decisions on questions of state criminal law.

The legislature's intent to have uniformity in criminal law throughout the state is clearly expressed in section 12.1-01-05, N.D.C.C., which reads:

"12.1-01-05. Crimes defined by state law shall not be superseded by city or county ordinance or by home rule city's or county's charter or ordinance. No offense defined in this title or elsewhere y law shall be superseded by any city or county ordinance, or city or county home rule charter, or by an ordinance adopted pursuant to such a charter, and all such offense definitions shall have full force and effect within the territorial limits and other jurisdiction of home rule cities or counties. This section shall not preclude any city or county from enacting any ordinance containing penal language when otherwise authorized to do so by law." [Emphasis added.]

Section 12.1-01-05 was enacted during the 1973 legislature as Senate Bill 2046, after a 1971-73 interim committee considered whether or not a municipal ordinance, especially an ordinance enacted by a home rule city, may supersede a state statute. ⁴ The legislature's intent to uniformly apply criminal law throughout the state, as expressed in section 12.1-01-05, N.D.C.C., would not be carried out if complaints dismissed in county court were appealable but complaints dismissed in municipal court were not appealable.

To give meaning to 12.1-01-05, N.D.C.C., we must either give expansive meaning to section 29-28-07(1), N.D.C.C., as previously herein described, or we must find that 12.1-01-05, N.D.C.C., impliedly amends section 40-18-19, N.D.C.C. Our reasoning convinces us we could do either or both. We have chosen to do the former.

We conclude the legislature could not have intended the disparate results which would occur if section 29-28-07(1), N.D.C.C., were construed not to permit appeal by the City under the circumstances of this case. Accordingly, we hold that the City of Bismarck is entitled to appeal from the dismissal of its complaint to county court.

The county court's order dismissing the City's appeal is reversed.

GIERKE, VANDE WALLE, LEVINE and MESCHKE, JJ., concur.

1 The City's complaint charges Hoopman with being in actual physical control of a motor vehicle under Bismarck City Ordinance 12-10-01. The City's ordinance is based on Sec. 39-08-01 of the North Dakota Century Code. Section 39-08-01(1), N.D.C.C., reads in part:

"39-08-01. Persons under the influence of intoxicating liquor or any other drugs or substances not to operate vehicle--Penalty.

"1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:

a. That person has a blood alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving.

b. That person is under the influence of intoxicating liquor.

c. That person is under the influence of any drug or substance or combination of drugs or substances to a degree which renders that person incapable of safely driving.

d. That person is under the combined influence of alcohol and any other drugs or substances to a degree which renders that person incapable of safely driving."

Subsections 39-08-01(2)-(4), N.D.C.C., delineate the criminal offenses and prescribe minimum sentences for violation of Sec. 39-08-01(1). Bismarck Municipal Ordinance 12-10-01 expressly adopts the criminal provisions contained in Sec. 39-08-01 of the North Dakota Century Code. Bismarck City Ordinance 12-10-01 in pertinent part reads:

"12-10-01. Persons Under the Influence of Intoxicating Liquor or Narcotic Drugs Not to Operate Vehicle; Penalty.

"1. A person may not drive or be in actual physical control of any...