City of Minot v. Knudson

Decision Date19 February 1971
Docket NumberCr. N
Citation184 N.W.2d 58
PartiesThe CITY OF MINOT, a municipal corporation, Plaintiff and Appellant, v. Raymond O. KNUDSON, Defendant and Respondent. o. 411.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. A defendant waives his constitutional protection against being placed in double jeopardy after a verdict or judgment against him is set aside at his own instance, either by motion in a trial court or by a successful appeal.

2. Section 29--28--07, N.D.C.C., provides, in substance, that an appeal may be taken by the state from an order quashing an information or indictment. A motion to quash is available to test the jurisdictional and legal sufficiency of an amended criminal complaint (the equivalent of an information) charging a defendant with the commission of a public offense. It follows that an order granting a motion to quash a complaint is appealable, just as is an order granting a motion to quash an information.

3. 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.

4. General and special statutes should be read together and harmonized, if possible; but, to the extent of any necessary repugnancy between them, the special statute will prevail over the general unless it appears that the Legislature intended to make the general act controlling.

5. Generally, the mere fact that the Legislature enacts an amendment to an existing statute is an indication that it thereby intended to change the original Act.

6. An Act of the Legislature will be construed by the courts in a practical manner and the words used in any statute will be understood in their ordinary sense.

7. Courts will take judicial notice of the official acts of public officers, and of the public laws of this State. Judicial notice will also be taken of the times of such occurrences which constitute the history of this State and of the contemporaneous history of North Dakota in determining the legislative intent leading up to and including the passage of a law.

8. Subsection 6 of § 29--06--15, N.D.C.C., permits a peace officer, without a warrant, to arrest a person at night for the offense of driving a vehicle while under the influence of alcoholic beverages, so long as the peace officer has made the arrest upon reasonable cause.

9. For the reasons stated in the opinion, the order of the district court is reversed and the case remanded for trial.

K. M. Knutson, Minot, for plaintiff and appellant.

Waldron & Kenner, Minot, for defendant and respondent.


The City of Minot, North Dakota, has appealed from the order of the district court of Ward County, North Dakota, entered on July 1, 1970, and from that certain order of the district court of Ward County dated August 27, 1970, amending and correcting the said order of July 1, 1970, and granting the motion of the defendant, Raymond O. Knudson, to quash the complaint filed in the municipal court of the City of Minot charging Mr. Knudson with the offense of driving a vehicle upon a city street while under the influence of intoxicating liquor. The facts of this case have been stipulated both by the City of Minot and Mr. Knudson.

On December 20, 1969, Mr. Knudson was involved in a one-car accident in the City of Minot. A Minot police officer was dispatched to the scene of the accident, but he did not observe Mr. Knudson actually operating his vehicle. After talking to Mr. Knudson and observing him, and while making an investigation of the accident, the police officer determined that he had reasonable cause to believe that Mr. Knudson had operated his vehicle while under the influence of intoxicating liquor. The police officer arrested Mr. Knudson without a warrant shortly after 6:16 p.m. on December 20, 1969, at the scene of the accident. Pursuant to the implied consent statute of North Dakota, Mr. Knudson was requested to permit a sample of his blood to be taken and analyzed for alcoholic content. Mr. Knudson complied with this request. A hearing was held in Minot Municipal Court and Mr. Knudson, upon arraignment in municipal court, moved to quash the complaint on the ground that the arrest was illegal; and he also moved to suppress as evidence the chemical analysis of his blood because it was not obtained subsequent to a legal arrest. The municipal judge refused to dismiss the charge or to suppress the evidence of the blood sample analysis. Subsequently, Mr. Knudson was found guilty of the charge of operating a motor vehicle while under the influence of intoxicating liquor. Mr. Knudson then appealed to the Ward County District Court and a trial de novo was demanded. When the case was reached for trial in the district court, Mr. Knudson renewed his motion to quash the complaint and to suppress the evidence and an order was granted pursuant to a motion to quash the complaint and vacate the judgment of the municipal court. The complaint was quashed by the district court for the reason stated by that court, namely, that the arrest was illegal because it had been made without a warrant, at night, in violation of §§ 29--06--08 and 29--06--16, North Dakota Century Code; and the motion to suppress the evidence was granted. The district court held that, notwithstanding subsection 6 of § 29--06--15, N.D.C.C., an arrest at night without a warrant for a misdemeanor violation of driving while under the influence of alcoholic beverages would be an illegal arrest when the violation had not been committed in the presence of the arresting officer. After the City of Minot had appealed to the Supreme Court, Mr. Knudson filed a motion with this court to dismiss the appeal on the grounds that the Supreme Court is without jurisdiction to hear this appeal in that the City of Minot is without statutory or constitutional authority to perfect an appeal in this case. The motion further states that Mr. Knudson had been placed once in jeopardy by the trial in the municipal court and, his bond having been released, it would constitute double jeopardy and would contravene the Fifth Amendment of the United States Constitution and Section 13 of the North Dakota Constitution to grant the appellant a review and a reversal of the district court decision. On the day set for oral argument before this court, and prior to hearing the oral arguments with reference to the merits of the case, both parties were given an opportunity to present their respective contentions in support of, and against, Mr. Knudson's motion. Consideration of the arguments on the motion and on the merits encompass the same legal issues, and therefore will be combined for the purposes of this opinion. Neither of the litigants has raised any issue with reference to the sufficiency of the 'reasonable cause' under which the arrest was made, or to the constitutionality of subsection 6 of § 29--06--15, N.D.C.C.

The primary issue is whether the City of Minot has the right to appeal from an order granting a motion to quash a complaint; and, if so, can an arrest be made at night, for driving under the influence of an alcoholic beverage, by a police officer without a warrant when he has not witnessed the driver operating the vehicle in question.

The relevant constitutional and statutory provisions are as follows:

Article V of the Amendments to the United States Constitution:

'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.'

Section 13 of the North Dakota Constitution:

'In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.'

Section 1--02--07, North Dakota Century Code:

'Particular controls general.--Whenever a general provision in a statute shall be in conflict with a special provision in the same or in another statute, the two shall be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest legislative intent that such general provision shall prevail.'

Section 29--06--08, North Dakota Century Code:

'When arrest made for felony--Misdemeanor.--An arrest for a felony may be made on any day and at any time of the day or night. An arrest for a misdemeanor can be made at night only upon the direction of the magistrate endorsed upon the warrant.'

Section 29--06--15, North Dakota Century Code:

'Arrest without warrant.--A peace officer, without a warrant, may arrest a person:

'6. On a charge, made upon reasonable cause, of driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages.'

Section 29--06--16, North Dakota Century Code:

'Arrest at night--Reasonable cause.--A peace officer at night may arrest a person for a public offense without a warrant, if:


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13 cases
  • City of Bismarck v. Uhden
    • United States
    • North Dakota Supreme Court
    • March 11, 1994
    ...proscribed both by city ordinance and state statute. City of Bismarck v. Hoopman, 421 N.W.2d 466 (N.D.1988); see also, City of Minot v. Knudson, 184 N.W.2d 58 (N.D.1971). We thus conclude that the City's appeal from municipal court to county court was authorized by We have defined the param......
  • State v. Allesi
    • United States
    • North Dakota Supreme Court
    • March 27, 1974
    ...necessary for us to determine under the facts of this case whether the double-jeopardy clause prohibits a retrial. In City of Minot v. Knudson, 184 N.W.2d 58 (N.D.1971), Knudson was charged with operating his motor vehicle while under the influence of intoxicating liquor. After being found ......
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    • United States
    • North Dakota Supreme Court
    • March 24, 2021
    ...judgment against them is set aside at their own instance, either by motion in trial court or upon successful appeal. City of Minot v. Knudson , 184 N.W.2d 58, 62 (N.D. 1971) ; see also Tibbs v. Florida , 457 U.S. 31, 39-41, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (Double Jeopardy Clause impos......
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    ...which is also proscribed by a state statute." City of Bismarck v. Hoopman, 421 N.W.2d 466, 468 (N.D.1988). See also City of Minot v. Knudson, 184 N.W.2d 58, 62-63 (N.D.1971). Kraft was charged with the same offense as proscribed by NDCC 5-02-06. Compare City of Fargo v. Little Brown Jug, 46......
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