State v. Loge, No. C9-98-842.

• Decision Date: 02 March 2000
• Docket Number: No. C9-98-842.
• Citation: 608 N.W.2d 152
• Parties: STATE of Minnesota, Respondent, v. Steven Mark LOGE, Appellant.
• Court: Minnesota Supreme Court

608 N.W.2d 152

STATE of Minnesota, Respondent, v. Steven Mark LOGE, Appellant.

No. C9-98-842.

Supreme Court of Minnesota.

March 2, 2000.

John M. Stuart, MN State Public Defender, Scott G. Swanson, Assistant State Public Defender, Minneapolis, for appellant.

Michael A. Hatch, MN Attorney General, James B. Early, Assistant Attorney General, St. Paul, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

GILBERT, Justice.

This case presents the question of whether knowledge is an element of the crime under the open bottle law when the driver is the sole occupant of a motor vehicle. Appellant Steven Mark Loge was cited on September 2, 1997, for a violation of Minn.Stat. § 169.122, subd. 3 (1998), which makes it unlawful for the driver of a motor vehicle, when the owner is not present, "to keep or allow to be kept in a motor vehicle when such vehicle is upon the public highway any bottle or receptacle containing intoxicating liquors or 3.2 percent malt liquors which has been opened." Violation of the statute is a misdemeanor. See Minn.Stat. § 169.122, subd. 4 (1998). After a bench trial, the district court held that subdivision 3 imposed "absolute liability" on the driver/owner. Loge appealed. The court of appeals affirmed the conviction, holding that proof of knowledge that the open container was in the motor vehicle was not required. See State v. Loge, 589 N.W.2d 491, 494 (Minn.App.1999)

. We affirm.

On September 2, 1997, Loge borrowed his father's pick-up truck to go to his evening job. Driving alone on his way home from work, he was stopped by two Albert Lea city police officers on County Road 18 at approximately 8:15 p.m. because he appeared to be speeding. Loge got out of his truck and stood by the driver's side door. While one officer was talking with Loge, the second officer, who was standing by the passenger side of the truck, observed a bottle, which he believed to be a beer bottle, sticking partially out of a brown paper bag underneath the passenger's side of the seat. He retrieved that bottle, which was open and had foam on the inside. He searched the rest of the truck and found one full, unopened can of beer and one empty beer can. After the second officer found the beer bottle, the first officer asked Loge if he had been drinking. Loge stated that he had two beers while working and was on his way home. Loge passed all standard field sobriety tests. The officers gave Loge citations for having no proof of insurance and for a violation of the open bottle statute but not for speeding. The no proof of insurance charge was later dismissed. Loge did not raise a probable cause challenge to either the stop or the officer's actions in observing the open bottle on the floor of the truck.

The trial on the open bottle charge took place on January 29, 1998. Loge testified that the bottle was not his, he did not know it was in the truck and had said that to one of the officers. That officer did not remember any such statements. At the close of the testimony, the trial court requested memoranda from Loge's counsel and the city attorney on the question of whether knowledge is an element of subdivision 3 of the open bottle statute. Both attorneys came to the same legal conclusion that proof of knowledge was required. The trial court found that one of the police officers "observed the neck of the bottle, which was wrapped in a brown paper sack, under the pickup's seat of the truck being operated by defendant." Based on an analysis of section 169.122 as a whole, the trial court held that subdivision 3 creates "absolute liability" on a driver/owner to "inspect and determine * * * whether there are any containers" in the motor vehicle in violation of the open bottle law and found Loge guilty. Loge was sentenced to five days in jail, execution stayed, placed on probation for one year, and fined $150 plus costs of $32.50.

Loge appealed the verdict. The city attorney did not file a respondent's brief but sent a letter to the Clerk of Appellate Court stating that he "concur[red] with the reasoning and rationale in the Appellant's brief and therefore there [was] no reason for the State of Minnesota to file a Respondent's brief." In a published opinion, the court of appeals affirmed the decision of the trial court finding that the evidence, which establishes that one of the officers saw an open bottle containing intoxicating liquor underneath the passenger seat of the truck Loge was driving on a public highway, was sufficient to support Loge's conviction. See Loge, 589 N.W.2d at 494

. The court of appeals held that proof of knowledge that the bottle was in the truck is not required to sustain a conviction. See id.

Loge's petition for further review was granted. The Attorney General then assumed responsibility for this case and filed a respondent's brief in which the Attorney General argues, contrary to the previous position of the state, that there is no knowledge requirement under subdivision 3.

Loge is seeking reversal of his conviction because, he argues, the trial court and court of appeals erroneously interpreted subdivision 3 of the open bottle statute¹ not to require proof of knowledge. Loge argues that the words "to keep or allow to be kept" implicitly and unambiguously require a defendant to have knowledge of the open container in the motor vehicle in order for criminal liability to attach. He argues that "keep" means "to maintain, or cause to stay or continue, in a specified condition, position, etc." Loge argues that that definition suggests that a person must purposely choose to continue possession. Further, Loge argues that the word "allow" from the phrase "allow to be kept" means "to permit; to grant license to," suggesting awareness at the minimum.

The state argues that the language of subdivision 3 creates a strict liability offense. The statute was enacted in 1959 and subdivision 3 has not had any substantive change since its enactment.² The state relies heavily on the presumption that the legislature intends the statute as a whole to be effective and certain, with no surplusage. See Minn.Stat. §§ 645.16, 645.17(2) (1998); State v. Orsello, 554 N.W.2d 70, 75-76 (Minn.1996). The state argues that subdivision 3's "keep or allow to be kept" language must mean more than mere possession of alcohol because owners/drivers are already subject to liability under subdivision 2 for mere possession, which applies to all persons in the motor vehicle. The state further argues that to read subdivision 3 as requiring conscious or continuing possession would make it mere surplusage.

Statutory construction is a legal determination reviewed by this court under a de novo standard. See In re A.A.E., 590 N.W.2d 773, 776 (Minn.1999)

. An analysis of a statute must begin with a careful and close examination of the statutory language. See Orsello, 554 N.W.2d at 74. We undertake such a review to ascertain and effectuate legislative intent. See Minn.Stat. § 645.16. If the meaning of the statute is "clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit." Id.

Except for search and seizure issues, this is the first time we have reviewed this statute since its enactment 40 years ago. We are asked only to interpret this statute under the facts presented. Although this statute addresses two potential, alternate situations involving a driver of "any private motor vehicle * * * when such vehicle is upon the public highway," only one is presented under these facts. Minn.Stat. § 169.122, subd. 3. The statute establishes liability for such a driver when that driver "keep[s] or allow[s] to be kept" any open bottle containing intoxicating liquor within the area normally occupied by the driver and passengers. Id. (emphasis added). These two alternate concepts are separated by the disjunctive "or," not "and." Unlike the use of the word "and," "or" signifies the distinction between two factual situations. We have long held that in the absence of some ambiguity surrounding the legislature's use of the word "or," we will read it in the disjunctive and require that only one of the possible factual situations be present in order for the statute to be satisfied. See, e.g., Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 385 (Minn.1999)

; Aberle v. Faribault Fire Dept. Relief Ass'n, 230 Minn. 353, 360, 41 N.W.2d 813, 817 (1950) ("The word `or' is a disjunctive and ordinarily refers to different things as alternatives."). Accordingly, we limit our opinion to the words "to keep."³ Minn.Stat. § 169.122, subd. 3.

Further, even though this was a court trial, we note that similar to the statute, CRIMJIG 29.30 also recognizes the significance of the use of the disjunctive "or" and provides for separate, alternate instructions on "(kept) (allowed to be kept)." See 10a Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, CRIMJIG 29.30 (4th ed.1999); see also 10 Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, Explanatory Note (4th ed. 1999) ("[P]arentheses indicate options for factual variations * * * ."). In prior versions of the jury instructions, the comment noted that the trial judges are divided as to whether knowledge is required under the statute. See 10a Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, M-JIG 3.17 Comment (1989 ed.). The comment noted that "[s]ince the [question of proof of knowledge] has not been ruled upon by the Minnesota appellate courts, the trial judge should include or omit the bracketed portion according to his or her own reading of the statute." Id. Thus, the instruction included then, as it does now, an optional portion in brackets which reads "[This means that defendant knew the (bottle) (receptacle) was in the vehicle.]." 10a Minn. Dist. Judges Ass'n, Minnesota...