Under N.D.C.C. § 39-08-01(2), a person who is convicted of DUI for the first or second offense "is guilty of a class B misdemeanor.
" Under N.D.C.C. § 12.1-32-01(6), the maximum penalty which may be imposed for a class B misdemeanor is "thirty days' imprisonment".
However, under N.D.C.C. § 39-08-01.2(2), when a person is convicted of a DUI in violation of N.D.C.C. § 39-08-01, which results in serious bodily injury to another "the sentence ... must be at least ninety days' imprisonment." the State argues the 90-day penalty is more specific than the maximum penalty allowed for class B misdemeanors.
As the more specific provision, it should be applied over the general provision to allow a sentence of "at least ninety days" for DUI's involving serious injury to another.
See N.D.C.C. § 1-02-07; see also City of Bismarck v. Fettig, 1999 ND 193, P15, 601 N.W.2d 247 (when there is a conflict between statutes, we construe specific statutes to control general statutes).
To allow a 90-day sentence or greater under N.D.C.C. § 39-08-01.2(2) is contrary to the 30-day maximum sentence allowed under N.D.C.C. § 12.1-32-01(6), and allowing imposition of the greater penalty would violate the statutory construction rule that penal statutes are strictly construed against the government and in favor of the accused. See, e.g., State v. Laib, 2002 ND 95, P13, 644 N.W.2d 878.
The North Dakota Supreme Court's opinion in State v. Rohrich, 450 N.W.2d 774, 777 (N.D. 1990), is instructive. In that case the State argued the court could sentence a defendant to 18 months of probation under N.D.C.C. § 12-53-03 or N.D.C.C. § 12.1-32-06, even though the defendant had been convicted of a class a misdemeanor for which the maximum penalty allowed under N.D.C.C. § 12.1-32-01 is one year. the North Dakota Supreme Court held the 18-month probationary period exceeded the one-year maximum term of imprisonment for a class a misdemeanor and "the sentence was illegal."
The statutory language under N.D.C.C. § 39-08-01.2(2), providing that a sentence "must be at least" 90 days imprisonment is particularly vexing, because it imposes no upper sentencing limit, if construed to override the 30-day maximum penalty for class B misdemeanors allowed under N.D.C.C. § 12.1-32-01(6).