State v. Grenz, Cr. N

• Decision Date: 28 March 1989
• Docket Number: Cr. N
• Citation: 437 N.W.2d 851
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gordon Neal GRENZ, Defendant and Appellant. o. 880080.
• Court: North Dakota Supreme Court

Page 851

437 N.W.2d 851

STATE of North Dakota, Plaintiff and Appellee, v. Gordon Neal GRENZ, Defendant and Appellant.

Cr. No. 880080.

Supreme Court of North Dakota.

March 28, 1989.

Allen M. Koppy, State's Atty., Mandan, for plaintiff and appellee.

David Alan Dick, Mandan, for defendant and appellant.

VANDE WALLE, Justice.

Gordon Grenz appealed from a judgment of conviction of driving under suspension in violation of Section 39-06-42, N.D.C.C. We affirm.

In 1984 Grenz pleaded guilty to a charge of driving under the influence of intoxicating liquor in South Dakota. Consequently, Grenz was required to provide proof of future financial responsibility under Chapter 39-16.1, N.D.C.C. ¹ Grenz requested his insurance company to file proof of financial responsibility and the insurance company did so until October 1986.

On December 21, 1986, Grenz received notice from the North Dakota driver's license division that his North Dakota driving privileges had been suspended because of failure to provide proof of financial responsibility since October 1986. Again, on July 6, 1987, Grenz received notice stating that his license was suspended in December 1986 and continued to be suspended. On July 8, 1987, Grenz was arrested in North Dakota and charged with driving under suspension in violation of Section 39-06-42.

Grenz filed a motion to dismiss the charge asserting that he was charged under the wrong statute. The record does not reflect the trial court's action, if any, on the motion. ² A jury trial was held and Grenz was found guilty of driving under suspension in violation of Section 39-06-42. Grenz appealed.

Section 39-06-42(1), N.D.C.C., provides:

"1. Except as provided in chapters 39-16 and 39-16.1 and section 39-06.1-11, any person who drives a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state while that person's license or privilege so to do is suspended or revoked is guilty of a class B misdemeanor." [Emphasis added.]

The effect of the section's "except as provided" language is central to the parties' contentions. Grenz contends that his conviction for violating Section 39-06-42 should be reversed because the "except as provided" language makes the section inapplicable to persons whose driving privileges were suspended because of failure to provide proof of financial responsibility under Chapter 39-16.1. His argument is that Chapter 39-16.1 applies to persons driving under suspension when the suspension arises from the failure to provide proof of financial responsibility and that he should have been charged with violating Section 39-16.1-21. ³

The State defends its reliance on Section 39-06-42, arguing that it is a general-penalty statute that applies in all cases of driving under suspension. The State asserts that Section 39-06-42 lacks limiting language that would restrict its application only to violations of Chapter 39-06. The State urges that the statute's "except as provided" language should be interpreted to mean that except when a driver is permitted to operate a vehicle after his license is suspended [see, e.g., Section 39-06.1-11(3) ], one who drives with his license suspended is guilty of a Class B misdemeanor under Section 39-06-42.

The dispositive issue on appeal is whether a person whose driving privileges were suspended because of failure to provide proof of financial responsibility under Chapter 39-16.1 may be convicted for driving under suspension in violation of Section 39-06-42.

In construing a statute, we look first to the language of the statute and, if the intent of the statute is apparent from its face, there is no room for construction thereof. ⁴ E.g., First Realty, Inc. v. Meide & Son, Inc., 422 N.W.2d 375 (N.D.1988). When the statute is clear and unambiguous, it is improper for the court to attempt to construe the provision so as to legislate that which the words of the statute do not themselves provide. Haider v. Montgomery, 423 N.W.2d 494 (N.D.1988).

We agree there is no ambiguity in the statute. Although it is well settled that penal statutes are subject to a strict construction, i.e., that the statutes are to be interpreted strictly against the State and liberally in favor of the accused [e.g., City of Bismarck v. Sholy, 430 N.W.2d 337 (N.D.1988) ], such a rule of construction is founded not on some pedantic, abstract ideal; rather,

"its object is to establish a certain rule, by conformity to which mankind would be safe, and the discretion of the court limited. A further policy behind this canon of construction is to provide a standard which, if followed, will avoid penalty." 73 Am.Jur.2d Statutes, Sec. 293, citing United States v. Harris, 177 U.S. 305, 20 S.Ct. 609, 44 L.Ed. 780 (1900).

See also State v. Johnson, 417 N.W.2d 365 (N.D.1987).

The conduct of which Grenz was convicted clearly violated the plain provisions of Section 39-06-42(1), i.e., he drove a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use while his license to do so was suspended. The reason that his license was suspended is immaterial to the conduct which the statute prohibits.

The "except as provided" language does not, as Grenz urges, make the statute ambiguous. As the State contends, the apparent import of the language is to exclude those persons whose licenses have been suspended or revoked but who are permitted temporary driving privileges by provisions such as Sections 39-06.1-11 or 39-16.1-04(2), N.D.C.C. To ascribe any other meaning to the language would require us to conclude that the Legislature intended to exclude from Section 39-06-42(1) acts that are in clear violation of the wording of that statute in order to make those same acts a violation of Sections 39-16-30 and 39-16.1-21, although the penalty for the violation of the three statutes is the same. The more logical and much less tortured interpretation of the statute is that the exclusion refers to a person whose license has been suspended or revoked but is nevertheless permitted to drive as a result of the issuance of a temporary-restricted license under Section 39-06.1-11 and, presumably, Section 39-16.1-04(2).

We decline to adopt the former interpretation, for it is an unwarranted and strained interpretation of the statute.

Not only does Grenz attempt to exclude himself from criminal responsibility for conduct clearly prohibited by the statute, he invokes the protection of an exception to a general law. To do so he must show himself clearly within the terms of the exception for, although exceptions in statutes are to be strictly, but reasonably, construed, they extend only so far as their language fairly warrants and all doubts are to be resolved in favor of the general provisions rather than the exception. State v. Peters, 334 N.W.2d 217 (S.D.1983). See also Knoepfle v. Suko, 108 N.W.2d 456 (N.D.1961). Further, the rule of law should not be interpreted so as to benefit or reward the wrongdoer. Fischer v. Knapp, 332 N.W.2d 76 (N.D.1983). Moreover, the interpretation urged upon us by Grenz would create rather than resolve ambiguity. For example, Section 39-06-42(1) prohibits a person whose license is suspended or revoked from operating a motor vehicle "on a highway or on public or private areas to which the public has a right of access for vehicular use." Sections 39-16-30 and 39-16.1-21 prohibit a person whose license is suspended or revoked under Chapters 30-16 or 30-16.1, respectively, from operating a motor vehicle "upon any highway." If a person whose license has been suspended or revoked under either of those chapters drives upon a highway [see definition of "highway" in Section 39-01-01(24) ], is he guilty of violating those respective sections but not guilty of violating those sections if he drives "on a public or private area to which the public has a right of access for vehicular use"? Or, if he drives not on a highway but on a public or private area to which the public has a right of access for vehicular use, is he guilty of violating Section 30-06-42 because that act is not excluded by that statute, i.e., driving without a license on an area to which the public has a right of access for vehicular travel is not prohibited by Chapters 39-16 and 39-16.1 and therefore is not excluded from scope of Section 39-06-42(1)? The canons of judicial construction neither require nor recommend such an exercise in statutory gymnastics, for we construe statutes to avoid ludicrous and absurd results. State v. Mees, 272 N.W.2d 61 (N.D.1978).

Finally, if any attempt is made to charge Grenz, or persons in similar situations, under Section 39-16.1-21, the complaint would necessarily be dismissed because it would constitute double jeopardy, i.e., all the elements of the offense defined by Section 39-06-42(1) would be included in the charge of a violation of Section 39-16.1-21. State v. Weisz, 356 N.W.2d 466 (N.D.1984); 21 Am.Jur.2d Criminal Law, Sec. 266.

The judgment of conviction is affirmed.

ERICKSTAD, C.J., and GIERKE, J., concur.

LEVINE, Justice, dissenting.

I dissent because I believe that NDCC Sec. 39-06-42(1) is inapplicable to a person whose driver's license is suspended under NDCC ch. 39-16.1.

The majority concludes that the language of NDCC Sec. 39-06-42(1) is clear and unambiguous on its face but then spends several pages interpreting it. A statute is ambiguous when it is susceptible of different, yet reasonable, meanings. State v. Silkman, 317 N.W.2d 124 (N.D.1982); Apple Creek Township v. City of Bismarck, 271 N.W.2d 583 (N.D.1978). I believe that the State and the defendant each posit a different, yet reasonable meaning of the "except as provided" language of NDCC Sec. 39-06-42(1), thus making the statute ambiguous. I would therefore resort to the statute's legislative history to ascertain the legislative intent. See NDCC Sec. 1-02-39; Ladish Malting Co. v. Stutsman...