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
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:
Section 13 of the North Dakota Constitution:
Section 1-02-07, North Dakota Century Code:
Section 29-06-08, North Dakota Century Code:
Section 29-06-15, North Dakota Century Code:
Section 29-06-16, North Dakota Century Code:
Section 29-28-07, North Dakota Century Code:
The question of Mr. Knudson being placed in double jeopardy should the order of the district court be reversed is not a valid issue in this case because 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. 21 Am.Jur.2d, Criminal Law § 209, p. 253; 1 Wharton's Criminal Law and Procedure § 142, p. 336. The United States Supreme Court held, in United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964), that the double jeopardy clause of the Fifth Amendment of the United States Constitution does not preclude a retrial of a defendant whose conviction has been set aside because of an error in the proceedings leading to conviction, whether the relief is obtained on direct appeal or by collateral attack, and whether or not the case has gone to the jury. We accordingly conclude that double jeopardy is not an issue in this case, because Mr. Knudson's motions have precluded him from claiming protection either under the Fifth Amendment of the United States Constitution or under Section 13 of the North Dakota Constitution.
We are next confronted with the issue of whether the City of Minot has a right of appeal in this case. If it does not have such a right, then, of course, Mr. Knudson is entitled to a dismissal of the appeal. The City of Minot agrees that the right to appeal ordinarily is limited to those grounds expressly authorized by law; and, further, that there is no statute which specifically provides for an appeal by the City from an adverse judgment of the district court in a case involving an alleged violation of a city ordinance. The City urges in support of its contention that it is entitled to a right of appeal by virtue of the authority granted under § 29-28-07, N.D. C.C. This section provides, in substance, that an appeal may be taken by the state from an order quashing an information or indictment, and cites State v. Hart, 162 N.W.2d 499 (N.D.1968), in which this court held that 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.
This court, in two cases decided in the year 1955—that is, City of Minot v. Kitzman, 71 N.W.2d 633 (N.D.) and City of Minot v. Whitfield, 71 N.W.2d 766 (N.D.) —denied the city's right to appeal. In the Kitzman case, this court held that where the defendant was acquitted in the trial court, the city had no right of appeal; and in the Whitfield case, the Supreme Court denied the city's right to appeal from an order of the district court granting a new trial to the defendant. However, in a recent decision of this court, to wit: in the case of City of Bismarck v. Materi, 177 N.W.2d 530 (N.D.1970), the court, in considering the Kitzman and Whitfield cases which are the bases of Mr. Knudson's motion to dismiss the appeal and basically support Mr. Knudson's contentions in his argument on the merits, said:
In the case at bar, Minot has a city ordinance prohibiting an act which is also prohibited by state law and the commission of which provides a penalty, which may include incarceration. As stated in City of Bismarck v. Materi, supra 177 N.W.2d at 537:
We adopt the reasoning of City of Bismarck v. Materi, supra.
Having decided that the City may appeal in this case, we must now consider the issue raised on appeal; that is: Does subsection 6 of § 29-06-15, N.D.C.C., apply to an arrest at night? We conclude that it does. Section 29-06-15, N.D.C.C., provides that a peace officer, without a warrant, may arrest a person 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.
Although § 29-06-15(6), N.D.C.C., is a statute dealing specifically with the charge of driving an automobile while under the influence of alcoholic beverages, § 29-06-16, N.D.C.C., is a statute governing the general arrest procedure in the State of North Dakota. Section 1-02-07, N.D.C.C., requires that the two statutes must be compared. The general rule on statutory construction is set forth in 82 C.J.S. Statutes § 369, as follows:
This court held, in Walker v. Weilenman, 143 N.W.2d 689, 691 (N.D. 1966), in paragraphs 1 and 2 of the syllabus:
This court further held, in Walker v. Peterson, 167 N.W.2d 151 (N.D. 1969), in paragraphs 1 and 2 of the syllabus:
On March 11, 1970, the Office of the Attorney General of North Dakota provided the Ramsey County state's attorney's office with an opinion in regard to §§ 29-06-15 and 29-06-16, N.D.C.C. In his opinion, the Attorney General stated:
The 1969 Legislature was cognizant of the fact that the largest percentage of violations for operating a motor vehicle while under the influence of alcoholic beverages occur at night. The 1969 Legislature also carefully considered the fact that since the law was then being changed to provide that public intoxication was no longer a criminal offense, it was believed necessary to provide a different method for arresting a person who was intoxicated and in apparent control of a vehicle, but whom the peace officer had not actually observed driving or being in actual physical control of a vehicle while intoxicated. Thus, section 4 of Chapter 91 of the 1969 Session Laws (Senate Bill No. 286), creating subsection 6 of § 29-06-15, N.D.C.C., was added to Senate Bill No. 286. Therefore, the intent of the Legislature was clear. In that light, we conclude that 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. For the reasons stated in the opinion, the order of the district court is reversed and the case remanded for trial.
STRUTZ, C. J., and ERICKSTAD, J., concur.
TEIGEN, Judge (dissenting).
I dissent on jurisdictional grounds for the reasons set forth in my dissenting opinion in City of Bismarck v. Materi, 177 N.W.2d 530-546 (N.D.1970).
KNUDSON, J., joins in the dissent of TEIGEN, J.