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State v. Higgins6/3/2004
At 10:30 p.m. on July 12, 2003, Higgins received a citation alleging he committed "the following offense: Operate a motorboat while under the influence in violation of Sec. 20.1-13-07 NDCC . . . in violation of Governor's boating proclamation."
[ ] Higgins filed a motion to dismiss or suppress evidence. Higgins asserted in his supporting brief, among other things: (1) "Game & Fish had recently adopted a policy of stopping every boat which had it[s] `docking lights' on after sundown . . . as a pretense to board any and all boats after sundown;" (2) "North Dakota Game & Fish has adopted the Coast Guard regulation" which, "[f]or purposes of this appeal . . . requires that all boats operating after sunset have red and green bow lights visible for one mile;" (3) "[s]ometime after sundown, Game & Fish Supervisor Knapp radioed Game & Fish Officer Lundstrom and told her to stop the pontoon . . . because it had its docking lights on;" (4) "Warden Lundstrom followed her supervisor's orders and stopped the pontoon;" (5) "[u]pon spotting an open container (which is legal on a boat), Warden Lundstrom then requested that Mr. Higgins perform several field sobriety tests;" and (6) "[f]ollowing this, Mr. Higgins was arrested for Operating a Motorboat Under the Influence of Alcoholic Beverages. See, N.D.C.C. § 20.1-13-07." Higgins argued, among other things: (1) he "cannot be convicted of operating a motorboat under the influence of alcoholic beverages," because N.D.C.C. § 20.1-13-07(2) "does not mention `alcohol beverages;'" and (2) there was no reasonable and articulable suspicion to stop Higgins's pontoon.
[ ] The State moved to amend the complaint to read, in part: on or about the 12th day of July, 2003, . . . Randy Higgins, did commit the crime of Boating While Intoxicated or Under the Influence, committed as follows:
The defendant operated a motor boat or vessel while intoxicated or under the influence of a narcotic drug, barbitu[r]ate, or marijuana;
N.D.C.C. 20.1-13-07 12.1-32-01(6)CLASS B MISDEMEANOR this contrary to the statute in such cases made and provided and against the peace and dignity of the State of North Dakota.
After a hearing, the trial court issued an order on the motions:
. The State's Motion to Amend the Criminal Complaint is denied;
. The Defendant's Motion to Suppress is granted on the ground that there was not a reasonable and articulable suspicion to stop the boat; and
. The Defendant's Motion to Dismiss is granted on the ground that there was insufficient evidence to believe that N.D.C.C. § 20.1-13-07(2) was violated because the statute makes no reference to "alcoholic beverages" as being an element of an alleged crime.
II.
[ ] On appeal, the State contends the trial court erred in denying its motion to amend the complaint. Uniform complaints, like the one issued in this case, are generally not drawn by attorneys and are often hastily drawn. See State v. Schwab, 2003 ND 119, 9, 665 N.W.2d 52. Higgins concedes that "[a]mendments to criminal complaints are routinely granted," but asserts "it is difficult to understand why the State is seeking an amendment to charge a crime which never happened," and "[t]he critical element of alcoholic beverages is still missing from the statute." Under N.D.R.Crim.P. 3(b), allowing amendment of a complaint is within the trial court's discretion. Schwab, at 9. We discern no possibility of prejudice to Higgins from amending the complaint, and we conclude the trial court abused its discretion in denying the State's motion to amend the complaint.
III.
[ ] The State contends the trial court erred in granting Higgins's motion to suppress on the gr
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