City of Lincoln v. Johnston

2012 ND 139, 818 N.W.2d 778, 2012 WL 2849693, 2012 N.D. LEXIS 140
North Dakota Supreme Court·Decided July 12, 2012·No. No. 20120068·Published·Cited by 1 cases

Opinion

SANDSTROM, Justice.

[¶ 1] Matthew Johnston appeals from a criminal judgment after he conditionally pled guilty to driving a vehicle under the influence of intoxicating liquor. He argues a bicycle is not a “vehicle” under N.D.C.C. § 39-08-01. Concluding a bicycle is considered a “vehicle” under N.D.C.C. § 39-08-01, we affirm.

I

[¶ 2] On August 16, 2011, the City of Lincoln charged Johnston with driving under the influence of intoxicating liquor after a police officer arrested him for driving his bicycle into a parked vehicle while he was under the influence of intoxicating liquor. Johnston moved to transfer the case from municipal court to district court, and the municipal court granted his motion. Johnston then moved to dismiss the charge, arguing a bicycle is not considered a “vehicle” under N.D.C.C. § 39-08-01. The district court denied Johnston’s motion, and after a hearing to reconsider the motion, the court again denied it. Johnston conditionally pled guilty to the charge, reserving his right to have this Court review whether a bicycle is considered a “vehicle” for the purposes of driving under the influence of intoxicating liquor. See N.D.R.Crim.P. 11(a)(2).

[¶ 3] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Johnston timely appealed from the criminal judgment under N.D.R.App.P. 4(b). We have jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 4] Johnston argues a bicycle moved by human power is not a “vehicle” under N.D.C.C. § 39-08-01.

[¶ 5] The interpretation of a statute is a question of law, which we review de novo. State v. Stavig, 2006 ND 63, ¶ 12, 711 N.W.2d 183. A question of law is fully reviewable on appeal. Id. [780]*780Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, the letter of the statute may not be disregarded under the pretext of pursuing its spirit. N.D.C.C. § 1-02-05. If the language of a statute is ambiguous, however, a court may resort to extrinsic aids to resolve the ambiguity. N.D.C.C. § 1-02-39.

[¶ 6] Johnston argues a person riding a human-powered bicycle cannot be charged with driving a vehicle under the influence of intoxicating liquor under N.D.C.C. § 39-08-01(1), which provides, in part:

A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
a. That person has an alcohol concentration of at least eight one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle.
b. That person is under the influence of intoxicating liquor.

(Emphasis added.) In support of his argument, Johnson relies on the definition of “vehicle” under N.D.C.C. § 39-01-01(95), which provides: “ ‘Vehicle’ includes every device in, upon, or by which any person or property may be transported or drawn upon a public highway, except devices moved by human power or used exclusively upon stationary rails or tracks.” (Emphasis added.)

[¶ 7] The City of Lincoln responds the legislature intended a bicycle to be considered a “vehicle” under N.D.C.C. § 39-08-01 because N.D.C.C. § 39-07-01 provides: “For the purposes of chapters 39-08 through 39-13, a bicycle or a ridden animal must be deemed a vehicle.” (Emphasis added.)

[¶ 8] Johnston argues N.D.C.C. § 39-01-01(95), which excludes “devices moved by human power” from the definition of “vehicle,” conflicts with N.D.C.C. § 39-07-01, which deems a bicycle a “vehicle” under N.D.C.C. ch. 39-08. Johnston cites several eases articulating our procedure for interpreting conflicting statutory provisions. See, e.g., City of Bismarck v. Fettig, 1999 ND 193, ¶ 14, 601 N.W.2d 247 (“[WJhen two statutes relating to the same subject matter appear to be in conflict, they should whenever possible be construed to give effect to both if such can be done without doing violence to either.”); Haff v. Hettich, 1999 ND 94, ¶ 34, 593 N.W.2d 383 (“When there is a conflict between statutes, we construe specific statutes to control general statutes.”); City of Fargo v. State, 260 N.W.2d 333, 338 (N.D.1977) (“[I]f an irreconcilable conflict exists between two statutes, the one which is enacted later will prevail.”); State v. Beciraj, 2003 ND 173, ¶ 14, 671 N.W.2d 250 (“Criminal statutes are strictly construed in favor of the defendant and against the government”).

[¶ 9] Section 39-07-01, N.D.C.C., and N.D.C.C. § 39-01-01(95), however, do not conflict with one another. Under the introductory language of N.D.C.C. § 39-01-01, the definition of “vehicle” under N.D.C.C. § 39-01-01(95) is to be used in title 39 “unless the context or subject matter otherwise requires.” In this case, under the introductory language of N.D.C.C. § 39-01-01(95), “the context or subject [781]*781matter otherwise requires” a deviation from the general definition of “vehicle” under N.D.C.C. § 39-01-01(95) because a separate, more specific statute, N.D.C.C. § 39-07-01, deems a bicycle a “vehicle” “[f)or the purposes of chapters 39-08 through 39 — 13[, N.D.C.C.]” Because Johnston’s argument is concerned with whether a bicycle is considered a “vehicle” under a section of N.D.C.C. ch. 39-08 — specifically, N.D.C.C. § 39-08-01 — we conclude the legislature’s deeming a bicycle a “vehicle” under N.D.C.C. § 39-07-01 includes a “vehicle” under N.D.C.C. § 39-08-01.

[¶ 10] In addition, although N.D.C.C. § 39-01-01(95) and N.D.C.C. § 39-07-01 are not in conflict with one another, even if they were, the specific statute, N.D.C.C. § 39-07-01, would control over the general statute, N.D.C.C. § 39-01-01(95). See N.D.C.C. § 1-02-07.

[¶ 11] The legislative history of N.D.C.C. § 39-01-01(95) and N.D.C.C. § 39-07-01 confirms our analysis, and a review of the history establishes N.D.C.C. § 39-07-01 is a derivation of N.D.C.C. § 39-01-01(95). When the legislature enacted what is now N.D.C.C. § 39-01-01 in 1927, the language now found in N.D.C.C. § 39-07-01 was originally part of N.D.C.C. § 39-01-01. See 1927 N.D. Sess. Laws ch. 162, § 1. At the time of its enactment, what is now N.D.C.C. § 39-01-01 defined “vehicle” as: “Every device in, upon or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks; provided, that for the purposes of this act, a bicycle or ridden animal shall be deemed a vehicle.” Id. (emphasis added).

[¶ 12] In 1943, the legislature amended what is now N.D.C.C. § 39-01-01 by removing the language: “provided, that for the purposes of this act, a bicycle or ridden animal shall be deemed a vehicle.” See N.D.R.C. ch. 39-0101 (1943). According to the Reviser’s Note to 39-0101 of the Code Revision Report Covering Work of the Code Revision Commission

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City of Lincoln v. Johnston, 2012 ND 139, 818 N.W.2d 778, 2012 WL 2849693, 2012 N.D. LEXIS 140 (N.D. 2012).

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