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(Cite as: 2003 WL 22481328 (Minn.App.))

NOTICE: THIS OPINION IS DESIGNATED AS UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINN. ST. SEC. 480A.08(3).

Court of Appeals of Minnesota.

STATE of Minnesota, Respondent,

v.

Wayne Edward STEVENS, Appellant.

No. A03-216.

Nov. 4, 2003.

UNPUBLISHED OPINION

WRIGHT, Judge.

*1 Appellant, a tribal member, was charged with driving in violation of a restricted license while on a reservation. The district court denied appellant's motion to dismiss for lack of subject matter jurisdiction, concluding that Minn.Stat. § 171.09(b)(1) (2002) is criminal in nature. Appellant, who was subsequently convicted, now challenges the district court's ruling, arguing that the State of Minnesota has no jurisdiction over a tribal member driving on a reservation after consuming alcohol in violation of a restricted license. We affirm.

FACTS

Appellant Wayne Stevens is an enrolled member of the White Earth Band of Chippewa Indians. After three convictions for driving while impaired by alcohol (DWI) and an implied-consent test refusal, his driving privileges were cancelled as inimical to public safety. He subsequently had three more DWI convictions. After completing a treatment program, Stevens's driving privileges were reinstated, subject to a restriction against any use of alcohol or drugs.

On April 14, 2002, Stevens was involved in a motor vehicle accident on the White Earth reservation. An intoxilyzer test revealed a blood-alcohol concentration (BAC) of 0.09.

Stevens was charged with violation of a restricted driver's license, in violation of Minn.Stat. § 171.09(b)(1) (2002); driving after cancellation as inimical to public safety (DAC-IPS), in violation of Minn.Stat. § 171.24, subd. 5 (2002); and careless driving, in violation of Minn.Stat. § 169.13, subd. 2 (2002). Stevens moved the district court to dismiss the restricted- license offense, arguing that the district court lacked subject matter jurisdiction because Minn.Stat. § 171.09(b)(1) is civil in nature. The district court denied the motion. Stevens waived his right to a jury trial, and the case was submitted to the district court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980). The district court found Stevens guilty of violation of a restricted driver's license and acquitted him of the other charges. This appeal followed.

DECISION

Whether a statute has been properly construed is a question of law, subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). The determination of subject matter jurisdiction is also a question of law, which we review de novo. State v. R.M.H., 617 N.W.2d 55, 58 (Minn.2000).

In Public Law 280, Congress granted states broad jurisdiction over Indian reservations in criminal matters and limited jurisdiction in civil matters. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 208, 107 S.Ct. 1083, 1088, 94 L.Ed.2d 244 (1987); State v. Stone, 572 N.W.2d 725, 728 (Minn.1997) (adopting Cabazon ). Laws that are criminal in nature are "fully applicable" to reservations, but laws that are civil in nature are "applicable only as it may be relevant to private civil litigation in state court." Cabazon, 480 U.S. at 208, 107 S.Ct. at 1088.

*2 No "bright-line" rules distinguish criminal laws from civil laws; that a law may impose criminal sanctions is not determinative of its nature. See Cabazon, 480 U.S. at 210-11, 107 S.Ct. at 1089. Rather, the determinative inquiry is whether the law generally prohibits or permits certain conduct. Id. at 209, 107 S.Ct. at 1088 (generally prohibitory laws are criminal in nature and generally permissive laws are civil). In Minnesota, "[t]he broad conduct is the focus of the test unless the narrow conduct presents substantially different or heightened public policy concerns." Stone, 572 N.W.2d at 730 (emphasis in original).

Stevens argues that the relevant narrow conduct is driving while not impaired by alcohol and with a BAC below 0.10. We conclude, however, that the relevant narrow conduct was driving with a restricted driver's license after consuming alcohol, as contemplated in Minn.Stat. § 171.09(b)(1) (2002). See Stone, 572 N.W.2d at 729 (conduct specified in individual traffic statutes is "narrow conduct" while conduct specified collectively, e.g., driving, is "broad conduct"). Stevens also emphasizes that he was not intoxicated at the time of the accident and that he was acquitted of careless driving. But these facts would be dispositive only if Stevens's license had not been restricted. The restriction requires us to focus on the narrow conduct to determine whether heightened public policy concerns are at issue. See Minn.Stat. § 171.09 (2002); see also Stone, 572 N.W.2d at 730.

Four nonexclusive factors may be used in determining whether "substantially different or heightened public policy concerns" are implicated by the narrow conduct. State v. Busse, 644 N.W.2d 79, 84-85. The first factor we consider is the extent to which the activity directly threatens physical harm. Id. The violation of laws concerning drinking and driving "creates a greater risk of direct injury to persons and property on the roadways." Stone, 572 N.W.2d at 731. Stevens implies that his alcohol-related driving record should not be considered because it detracts from the facts that Stevens was not under the influence and had a BAC under 0.10. The Minnesota Supreme Court's analysis in Busse, however, rejects this implication. Busse also was not intoxicated at the time of his offense, but his offense of driving after cancellation as inimical to public safety nevertheless involves a greater risk created when a person, repeatedly convicted of violating DWI laws, drives. Busse, 644 N.W.2d at 85. The underlying basis for a license revocation, cancellation, or restriction is, therefore, relevant to the determination of whether the narrow conduct involves heightened or different public policy concerns. Id. at 84. "[A] revocation ... based on prior alcohol-related offenses may also reflect heightened public policy concerns and merit the criminal/prohibitory label." Id. at 87. Here, Stevens's license was restricted because of his alcohol- related driving record, including six prior DWI convictions. Thus, his violation of the license restriction involved heightened public policy concerns associated with the physical dangers of drinking and driving.

*3 The second factor is the extent to which the law allows for exceptions and exemptions. Id. at 85. Under Minn.Stat. § 171.09(b)(1), all violations of license restrictions are prohibited; any person who drives in violation of a restriction is guilty of a crime. The absence of exceptions or exemptions invokes heightened public policy concerns.

The actor's blameworthiness is the third factor we examine. Busse, 644 N.W.2d at 85. Stevens does not dispute that he had actual knowledge of the driver's license restriction prior to the motor vehicle accident. He knew that he could not legally drive after consuming alcohol, but proceeded to do so anyway. Thus, Stevens's blameworthiness also implicates heightened public policy concerns.

The fourth factor we consider is the nature and severity of potential penalties for violation of the law. Id. Violation of a restricted driver's license is a gross misdemeanor. See Minn.Stat. § 171.09(b)(1). Stevens argues that the severity of his conviction does not implicate heightened public policy because driving without insurance also can result in a gross misdemeanor. See Stone, 572 N.W.2d at 731 (classifying driving without insurance as civil/regulatory). This argument also is unavailing. Section 171.09(b) distinguishes between violations relating to alcohol or controlled substances, which are gross misdemeanor offenses, and any other violations, which are misdemeanor offenses. The relative severity of driving in violation of a restriction relating to alcohol or controlled substances demonstrates heightened public policy concerns. See Busse, 644 N.W.2d at 85 (comparing DAC-IPS, a gross misdemeanor, to driving after suspension, revocation, disqualification, and cancellation for other reasons, all misdemeanors).

Finally, Stevens argues that Busse is distinguishable because, unlike Busse, Stevens was acquitted of DAC-IPS. But the facts critical to the supreme court's analysis in Busse are very similar to those here. Busse had four DWI convictions before his driving privileges were cancelled; Stevens had six DWI convictions before his driving privileges were restricted. Id. at 80. The commissioner had cancelled Busse's driving privileges because, for Busse, " any driving ... was inimical to public safety." Id. at 85. Here, the commissioner determined that, for Stevens, any driving after consuming any alcohol was inimical to public safety. The supreme court determined that Busse's narrow conduct involved heightened public policy concerns. Id. Based on our consideration of the four factors above and the supreme court's analysis in Busse, we conclude that Stevens's narrow conduct involves heightened public policy concerns.

Having concluded that the narrow conduct of driving in violation of an alcohol-related restriction involves heightened public policy concerns, we now consider whether such conduct is generally permitted or generally prohibited. Stone, 572 N.W.2d at 729 (citing Cabazon, 480 U.S. at 209, 107 S.Ct. at 1088). Because Minn.Stat. § 171.09(b)(1) prohibits any driving in violation of a driver's license restriction, the conduct at issue is generally prohibited. Thus, we conclude that Minn.Stat. § 171.09(b)(1) is criminal/prohibitory, and the district court correctly determined that it had subject matter jurisdiction over the charge of driving in violation of a restricted license even though Stevens is an enrolled tribal member who committed the offense on a reservation.

*4 Affirmed.