#29344-r-SRJ 2021 S.D. 17
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
IBRAHIM NASR IBRAHIM, Appellee,
v.
STATE OF SOUTH DAKOTA, DEPARTMENT OF PUBLIC SAFETY, Appellant.
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.
ARGUED JANUARY 13, 2021 OPINION FILED 03/10/21 #29344
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
marijuana 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
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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.
1. A transcript of the administrative hearing is not available because Ibrahim failed to order one at the time he appealed the Department’s decision. However, the Department’s counsel stated at oral argument that Kerry Schrank, who prepared the Department’s record for the administrative hearing, and Ibrahim both testified before the OHE.
2. At oral argument, Ibrahim acknowledged that the period of his CDL disqualification had expired. However, both parties asked this Court to not dismiss the case on mootness. We think it appropriate to review the issues under the public interest exception to the mootness doctrine. This Court “possess[es] discretion to determine a moot question of public importance if we feel that the value of its determination as a precedent is sufficient to overcome the rule against considering moot questions.” Larson v. Krebs, 2017 S.D. 39, ¶ 16, 898 N.W.2d 10, 16–17. “A question may be of public importance if it affects the legal rights or liabilities of the public at large.” Id.
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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
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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.
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[¶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 duty to reconcile any such
apparent contradiction [in the statute] and to give effect, if possible, to all of the
provisions under consideration, construing them together to make them harmonious
and workable.” Matter of Certain Territorial Elec. Boundaries (Aberdeen City
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Vicinity) (F-3111), 281 N.W.2d 72, 76 (S.D. 1979). “We presume the Legislature
does not insert surplusage into its enactments. Also, this court will not construe a
statute in a way that renders parts to be surplusage.” Hollman v. S.D. Dep’t of Soc.
Servs., 2015 S.D. 21, ¶ 9, 862 N.W.2d 856, 859. “We will not construe a statute to
arrive at a strained, impractical, or illogical conclusion.” Santema v. S.D. Bd. of
Pardons & Paroles, 2007 S.D. 57, ¶ 14, 735 N.W.2d 904, 908.
[¶14.] The circuit court held the case “boil[ed] down to a matter of statutory
construction” concerning “what role a motor vehicle must play in an underlying
felony crime.” The circuit court distinguished between the words “using” as applied
in subsection (4), and “while,” as applied in other subsections of SDCL 32-12A-36.
It reasoned that “while” merely required the operation of a vehicle and the
commission of a felony to occur concurrently. In contrast, the court read the
language “using a . . . motor vehicle in the commission of any felony” to require that
the vehicle was an “instrumentality” of the offense, or that the offense required a
vehicle to be “used as an instrument in [its] commission.”
[¶15.] The Department argues that the circuit court’s interpretation was
erroneous. It reasserts its claim that a “felony” is “any offense under state or
federal law that is punishable by death or imprisonment for a term exceeding one
year[.]” SDCL 32-12A-1(16). Thus, in the Department’s view, the statute’s broad,
inclusive language of “using a . . . vehicle in the commission of any felony” is
contrary to the circuit court’s narrow reading of the statute. (Emphasis added).
Additionally, the Department claims that the plain language of the statute does not
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require that a vehicle was an “instrumentality” of the offense. Ibrahim responds
that the circuit court’s reading of SDCL 32-12A-36(4) was correct.
[¶16.] Considering the subsection as a whole, SDCL 32-12A-36(4) requires
disqualification of commercial driving privileges for one year if a person is
“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 . . . .”
A plain reading of the statute leads to the conclusion that it applies upon proof that
the vehicle was used as a means to commit felony possession of marijuana. See
State v. Myers, 2014 S.D. 88, ¶ 8, 857 N.W.2d 597, 600 (“The words the [L]egislature
used are presumed to convey their ordinary, popular meaning, unless the context or
the [L]egislature’s apparent intention justifies departure from the ordinary
meaning.”).
[¶17.] Broadly, the word “use” means “to put into action or service . . .
employ.” Use, Merriam-Webster, https://www.merriam-
webster.com/dictionary/webster.com/dictionary/use (last visited Mar. 2, 2021).
The word “use” may also mean “to carry out a purpose or action by means of.” Id.
Under either definition, a person who possesses a felony quantity of marijuana in a
vehicle driven on a highway is using the vehicle in the commission of a felony. See
State v. Barry, 2004 S.D. 67, ¶ 9, 681 N.W.2d 89, 92 (A conviction for possession of
marijuana under SDCL 22-42-6 requires a showing that a person has “dominion or
right of control over a controlled substance or marijuana with knowledge of its
presence and character”) (emphasis added).
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[¶18.] Ibrahim argues that SDCL 32-12A-36(4) only applies to felonies that
require the “use” of a vehicle to commit the offense. He offers the example of a
felon who uses a vehicle to serve as “a get-a-way driver in a robbery” to support
his claim that this is the type of conduct contemplated by SDCL 32-12A-36(4).
The circuit court applied similar reasoning to refute the Department’s contention
that Ibrahim used a vehicle in the commission of a felony, holding that SDCL 32-
12A-36(4) did not warrant disqualification of Ibrahim’s commercial driving
privileges because “driving a vehicle was not relevant to the [possession of
marijuana] charge or conviction in any way . . . . [Ibrahim] would have been guilty
of the exact same offense had he been walking down the street.” 3
[¶19.] Nothing in the statute suggests that the Legislature intended to
exclude felonies that could also be committed without using a vehicle. To the
contrary, the Legislature’s inclusion of the “any felony” language suggests that
subsection (4) is a catch-all provision that requires the disqualification of CDL
privileges whenever a vehicle is used in the commission of a felony. Subsection (4)
is unlike the other subsections of SDCL 32-12A-36, which refer to specific criminal
offenses.
3. Undoubtedly, a person can be convicted of aiding and abetting a robbery without using a vehicle, just as he or she can be convicted of felony possession of marijuana while walking down the street. In either instance, SDCL 32- 12A-36(4) would not require disqualification because the felon was not “using a . . . motor vehicle in the commission of [the offense.]” However, when a person is “using a . . . vehicle in the commission of [the offense]” by driving the get-a-way car or driving a vehicle with a felony quantity of marijuana inside, SDCL 32-12A-36(4) plainly applies.
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[¶20.] This conclusion is also consistent with SDCL 32-12A-38. 4 SDCL 32-
12A-38 requires permanent CDL disqualification when a person “uses a commercial
or noncommercial motor vehicle in the commission of any felony involving . . .
possession with intent to manufacture, distribute, or dispense a controlled
substance” (emphasis added). It is clear that the Legislature intended this statute─
using nearly the same language as SDCL 32-12A-36(4)─ to disqualify the CDLs of
individuals convicted of using a vehicle to possess a controlled substance, with the
intent to manufacture, distribute, or dispense, even though it is possible to commit
the same offense without using a motor vehicle.
[¶21.] We conclude that CDL disqualification under SDCL 32-12A-36(4)
applies when a vehicle is used as a means to possess a felony quantity of marijuana.
2. Whether the circuit court erred by holding SDCL 32- 12A-36(4) was unconstitutionally vague.
[¶22.] We have recognized the well-established rule that courts generally do
not consider the constitutionality of a statute unless the issue is first raised by the
parties. Sharp v. Sharp, 422 N.W.2d 443, 445-46 (S.D. 1988). See also State v.
Jones, 406 N.W.2d 366, 371 (S.D. 1987) (Wuest, C.J., dissenting) (stating that “[s]ua
sponte consideration of constitutional issues should be reserved for exceptional
cases,” in which the unconstitutionality of a statute is apparent). “Courts are not
concerned with the overall merits or wisdom of statutes. The courts become
4. “Any person is disqualified from driving a commercial motor vehicle for life who uses a commercial or noncommercial motor vehicle in the commission of any felony involving the manufacture, distribution, or dispensing of a controlled substance, or possession with intent to manufacture, distribute, or dispense a controlled substance.” SDCL 32-12A-38.
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judicially concerned when the statute’s constitutionality is questioned.” Sharp, 422
N.W.2d 443 at 445. The United States Supreme Court has also recently cautioned
courts against raising questions that have not been raised by the parties. See
United States v. Sineneng-Smith, ___ U.S. ___, 140 S. Ct. 1575, 1579, 206 L. Ed. 2d
866 (2020) (discussing the party presentation principle).
[¶23.] Case law requires a court to act circumspectly in raising a
constitutional defect on its own. The constitutional issue identified by the circuit
court was not initially briefed, and was, to some degree, inconsistent with the
original argument Ibrahim made to the circuit court. However, it is not necessary
to consider principles of judicial restraint further because the statute is not
unconstitutional on its face.
[¶24.] A statute is unconstitutionally vague if “a defendant . . .
demonstrate[s] that the statute as it applied to the facts of his case was so vague
that it did not give a person of ordinary intelligence fair notice that his
contemplated conduct was forbidden.” Donat v. Johnson, 2015 S.D. 16, ¶ 28, 862
N.W.2d 122, 132. Ibrahim has failed to make such a showing in this case. SDCL
32-12A-36(4) is plain on its face as applied to the facts of this case, so that a person
transporting controlled substances within a vehicle would have fair notice of the
conduct that the statute implicates. Therefore, the circuit court erred in
determining SDCL 32-12A-36(4) was unconstitutionally vague as applied to
Ibrahim.
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3. Whether there was sufficient evidence to support the Department’s disqualification of Ibrahim’s CDL privileges.
[¶25.] “Our review of agency decisions is the same as the review made by the
circuit court. We perform that review of the agency’s findings unaided by any
presumption that the circuit court’s decision was correct.” In re Jarman, 2015 S.D.
8, ¶ 8, 860 N.W.2d 1, 5 (internal citations omitted). We “give great weight to the
findings made and inferences drawn by an agency on questions of fact. We reverse
only when those findings are clearly erroneous in light of the entire record.” Id.
[¶26.] As discussed above, SDCL 32-12A-36(4) was applicable upon proof that
Ibrahim’s felony conviction for marijuana possession arose from his use of a motor
vehicle. The OHE found that these requirements were satisfied upon its
determination that Ibrahim was convicted of a felony after he “was pulled over for
an equipment violation,” and “[i]t was later discovered that he had [a felony
quantity of] marijuana in the vehicle.” These findings are partially supported by
the abstract in the record, providing Ibrahim’s 2017 citation and the docket number
of the criminal case for which he was convicted. In addition, the OHE’s proposed
decision states that Ibrahim testified at the hearing. However, we are unable to
fully review the sufficiency of the evidence to support the OHE’s findings because
Ibrahim failed to order a transcript of the proceedings before the OHE.
[¶27.] SDCL 1-26-32.2 requires the party appealing an administrative
decision to order “a written transcript of the proceedings or such parts thereof as he
deems necessary . . . .” We have stated that an appellant’s failure to order a
transcript “may well be fatal to an appeal if it prevents complete and meaningful
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review of an issue. Our rule, therefore, provides that we will review the [agency]
record insofar as it exists.” Graff v. Children’s Care Hosp. & Sch., 2020 S.D. 26, ¶
16, 943 N.W.2d 484, 489. And we will presume the fact finder acted properly where
the record is incomplete. Id.
[¶28.] Ibrahim has not rebutted the presumption that the OHE’s findings
were supported by the evidence. See Erickson v. Dep’t of Pub. Safety, 2017 S.D. 75,
¶¶ 4, 11, 904 N.W.2d 352, 354, 356 (affirming the Department’s disqualification of
an appellant’s CDL when no criminal file or transcript from the criminal hearing
was offered into evidence at the agency hearing). Specifically, Ibrahim has not
challenged that he was convicted of possessing a felony quantity of marijuana in his
vehicle after he was stopped by law enforcement.
[¶29.] We reverse the circuit court and affirm the Department’s decision.
[¶30.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.
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