Ibrahim v. State, 031021 SDSC, 29344-r-SRJ

Docket Nº29344-r-SRJ
Opinion JudgeJENSEN, CHIEF JUSTICE
Party NameIBRAHIM NASR IBRAHIM, Appellee, v. STATE OF SOUTH DAKOTA, DEPARTMENT OF PUBLIC SAFETY, Appellant.
AttorneyJASON R. ADAMS of Tschetter & Adams Law Office, P.C. Sioux Falls, South Dakota Attorneys for appellee. EDWARD S. HRUSKA III Special Assistant Attorney General Department of Public Safety Pierre, South Dakota Attorneys for appellant.
Judge PanelKERN, SALTER, DEVANEY, and MYREN, Justices, concur.
Case DateMarch 10, 2021
CourtSupreme Court of South Dakota

2021 S.D. 17

IBRAHIM NASR IBRAHIM, Appellee,

v.

STATE OF SOUTH DAKOTA, DEPARTMENT OF PUBLIC SAFETY, Appellant.

No. 29344-r-SRJ

Supreme Court of South Dakota

March 10, 2021

ARGUED JANUARY 13, 2021

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE DOUGLAS E. HOFFMAN Judge

JASON R. ADAMS of Tschetter & Adams Law Office, P.C. Sioux Falls, South Dakota Attorneys for appellee.

EDWARD S. HRUSKA III Special Assistant Attorney General Department of Public Safety Pierre, South Dakota Attorneys for appellant.

JENSEN, CHIEF JUSTICE

[¶ 1.] This case primarily presents a question of statutory interpretation concerning South Dakota's commercial driver's license (CDL) disqualification statute, SDCL 32-12A-36(4). Specifically, whether possession of a felony quantity of m arijuana while using a motor vehicle is "using a . . . vehicle in the commission of any felony. . . ." We hold that it is and reverse the circuit court.

Facts and Procedural History

[¶2.] On June 14, 2019, the Department of Public Safety (Department) mailed Ibrahim Nasr Ibrahim a "Notification of Driving Privileges." The notice stated that Ibrahim's South Dakota commercial driving privileges would be disqualified for one year beginning on June 29, 2019, pursuant to SDCL 32-12A- 36(4). The notice also informed Ibrahim that he could request an administrative hearing to challenge the disqualification.

[¶3.] SDCL 32-12A-36(4) provides that: [a]ny person is disqualified from driving a commercial motor vehicle for a period of not less than one year . . . [i]f convicted of a first violation of using a commercial or noncommercial motor vehicle in the commission of any felony other than a felony described in § 32-12A-38[─setting forth drug-related felonies that require permanent CDL disqualification] . . . .

[¶4.] Ibrahim challenged the proposed disqualification, and an administrative hearing was held before the Office of Hearing Examiners (OHE) on September 26, 2019. Ibrahim was represented by counsel at the hearing. The OHE record shows that the Department introduced an abstract of Ibrahim's driving history from its records, which documented a 2017 citation and subsequent conviction on March 28, 2018 for a "[f]elony committed in a vehicle by a CDL holder." The abstract also included the docket number of the corresponding criminal case.1

[¶5.] The hearing examiner entered findings that Ibrahim had a CDL, and "[o]n or about August 19, 2017, [he] was pulled over for an equipment violation. It was later discovered that he had marijuana in the vehicle. The amount was large enough that he received a citation for a 'felony committed in a vehicle by a CDL holder'. . . . On March 28, 2018, Ibrahim was convicted of a 'felony committed in a vehicle by a CDL holder[.]'" Based on these findings, the OHE ordered Ibrahim's commercial driving privileges to be disqualified for one year. The Department confirmed the order.2

[¶6.] Ibrahim appealed to the circuit court and raised the sole issue of whether there was sufficient evidence to support the Department's decision. Ibrahim did not dispute that he was convicted of a felony, or that his conviction arose from the marijuana found in his vehicle after he was stopped in August 2017. He also conceded that SDCL 32-12A-1(16) (defining a felony) and SDCL 32-12A-36(4) are controlling, and "[b]y enactment of these statutes, the Legislature has specifically directed that any CDL holder who commits a felony in a noncommercial vehicle shall be disqualified for a period of not less than one year, regardless of whether that person receives a suspended imposition of sentence." However, Ibrahim argued that the OHE's findings were clearly erroneous because the Department did not submit sufficient documentation to establish facts regarding his 2017 citation and 2018 felony conviction.

[¶7.] Before considering the sufficiency of the evidence issue, the circuit court sua sponte asked the parties to submit supplemental briefs addressing whether storage of a felony quantity of marijuana inside a vehicle "constitute[d] 'using a motor vehicle in the commission of a felony' in violation of SDCL 32-12A-36." Secondly, the court asked what felonies fall into the purview of SDCL 32-12A-36(4), "and if no[ne], whether that renders SDCL 32-12A-36[(4)] void for vagueness, or otherwise nugatory?"

[¶8.] Ibrahim submitted a supplemental brief in response, in which he reversed course on his prior concession that SDCL 32-12A-1(16) (defining a felony) was controlling. He argued instead that SDCL 32-12A-36(4) does not require CDL disqualification for felony marijuana possession and other drug-related felonies when the felonious activity occurs in a vehicle. In support, Ibrahim pointed out that SDCL 32-12-52.3 provides for driver's license revocations following convictions for "drug-related offenses" that occurred "while in a vehicle," but the Legislature did not adopt the same specific language concerning "drug-related offenses" in SDCL 32-12A-36(4). Ibrahim also argued that SDCL 32-12A-36(4) is unconstitutionally vague because it provides that a person's commercial driving privileges may only be disqualified if convicted of a crime that penalizes the use of a vehicle in the commission of a felony. However, he claims that "[t]here is no crime [that requires] using a commercial or noncommercial vehicle in the commission of a felony."

[¶9.] The Department also responded to the issues raised by the circuit court. It argued that the plain meaning of the phrase "any felony" is expansive and includes all felonies, including drug offenses, defined under South Dakota's statutory scheme that are committed in a motor vehicle. The Department further argued that the statute's inclusion of "any felony" except as "described in § 32-12A-38" shows that the Legislature considered what felonies to exclude. The Department asserted that SDCL 32-12A-36 is not void for vagueness because each of the statute's seven subsections clearly defines offenses and conduct that require CDL disqualification.

[¶10.] The circuit court held that SDCL 32-12A-36(4) requires that a vehicle was an "instrumentality" of the felony, meaning the felony could not have been committed unless a vehicle was "used as an instrument in [its] commission[;]" and that any other interpretation would be unconstitutionally vague. The court also determined that SDCL 32-12A-36(4) requires a CDL holder to be convicted of a crime that penalizes the use of a vehicle to commit a felony. Finally, the circuit court held that the Department did not present sufficient evidence for its decision and reversed Ibrahim's CDL disqualification.

[¶11.] The Department appeals, claiming the circuit court erred in reversing the disqualification of Ibrahim's CDL privileges and raises three issues for our review: (1) whether possession of a felony quantity of marijuana in a vehicle is "using a . . . vehicle in the commission of any felony" under SDCL 32-12A-36(4); (2) whether the circuit court erred by holding SDCL 32-12A-36(4) was unconstitutionally vague; and (3) whether there was sufficient evidence to support the Department's disqualification of Ibrahim's CDL privileges.

Analysis and Decision

1. Whether possession of a felony quantity of marijuana in a vehicle is "using a . . . vehicle in the commission of any felony" under SDCL 32-12A-36(4).

[¶12.] We review questions of statutory interpretation de novo. State v. Bowers, 2018 S.D. 50, ¶ 16, 915 N.W.2d 161, 166. "[T]he language expressed in the statute is the paramount consideration" in statutory construction. In re West River Elec. Ass'n, Inc., 2004 S.D. 11, ¶ 15, 675 N.W.2d 222, 226. Further, "we give words their plain meaning and effect, and read statutes as a whole." Bowers, 2018 S.D. 50, ¶ 16, 915 N.W.2d at 166. "When the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court's only function is to declare the meaning of the statute as clearly expressed in the statute." Zoss v.

Schaefers, 1999 S.D. 105, ¶ 6, 598 N.W.2d 550, 552.

[¶13.] When a statute is unclear, "[i]t is our...

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