This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Phillip Maurice Shaugobay,


Filed August 10, 1999


Kalitowski, Judge

Mille Lacs County District Court

File No. T298360

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN, 55101; and

Jennifer Fahey, Mille Lacs County Attorney, Matthew W. Brune, Assistant County Attorney, Courthouse Square, 525 2nd Street Southeast, Milaca, MN 56353 (for respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.



Appellant Phillip Maurice Shaugobay contends the district court erred in determining that it had subject matter jurisdiction over a charge of driving after revocation because appellant is a registered member of the Mille Lacs Band of Ojibwe Indians who was driving on the Mille Lacs Band Reservation at the time he was charged. We affirm.


This court reviews jurisdictional questions de novo. State v. Stone, 557 N.W.2d 588, 590 (Minn. App. 1996), aff'd, 572 N.W.2d 725 (Minn. 1997).

In Public Law 280 Congress granted Minnesota broad criminal jurisdiction over all Indian country within the state with the exception of the Red Lake Reservation. State v. Stone, 572 N.W.2d 725, 728 (Minn. 1997) (citing Pub. L. No. 83-280, 67 Stat. 588-89 (1953) (codified as amended at 18 U.S.C. § 1162 (1994), 25 U.S.C. §§ 1321-24 (1994), 28 U.S.C. § 1360 (1994))). The purpose of this grant of authority was "to combat a perceived problem of lawlessness on certain reservations that lacked adequate tribal law enforcement." State v. Zornes, 584 N.W.2d 7, 9 (Minn. App. 1998).

Public Law 280 does not allow enforcement of all state civil or regulatory laws. Zornes, 584 N.W.2d at 9. Rather,

if the intent of a state law is generally to prohibit certain conduct, it falls within Pub.L. 280's grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub.L. 280 does not authorize its enforcement on an Indian reservation.

California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209, 107 S. Ct. 1083, 1088 (1987). The Cabazon test admits of some ambiguity. Stone, 572 N.W.2d at 729. Minnesota therefore developed a two-step approach to applying the Cabazon test:

The first step is to determine the focus of the Cabazon analysis. The broad conduct will be the focus of the test unless the narrow conduct presents substantially different or heightened public policy concerns. If this is the case, the narrow conduct must be analyzed apart from the broad conduct. * * * If the conduct is generally permitted, subject to exceptions, then the law controlling the conduct is civil/regulatory. If the conduct is generally prohibited, the law is criminal/prohibitory.

Id. at 730.


Appellant argues that because the offense of driving after revocation does not raise public policy concerns substantially different from those behind general driving laws, the test for driving after revocation should focus on the broad conduct of driving. We disagree.

In State v. Zornes, the defendant, an enrolled member of the White Earth Band of Ojibwe who was charged with driving after cancellation on reservation land, was convicted of violating Minn. Stat § 171.24, subd. 5 (Supp. 1997), which makes it a gross misdemeanor to drive if one's license has been canceled because operation of a motor vehicle on the highways by such person would be "inimical to public safety or welfare." 584 N.W.2d at 10. The only grounds provided for cancellation under this statute involve alcohol and controlled substances. Id. Concluding that the statute Zornes was convicted under was primarily concerned with DWI enforcement, the court determined that the state's interest in enforcing its DWI laws

presents policy concerns sufficiently different from general road safety to justify applying the Cabazon test to the narrow conduct of driving after a cancellation for public safety reasons rather than to the broad conduct of driving.

Id. at 11; see Stone, 472 N.W.2d at 730-31 (determining that driving regulations including licensing requirements, speed limits, and child restraint and seat belt laws did not raise policy concerns substantially different or heightened from the general public policy behind the driving laws, but noting that laws prohibiting drinking and driving and those prohibiting both reckless and careless driving have substantially different or heightened public policy concerns); see also State v. Robinson, 572 N.W.2d 720, 724 (Minn. 1997) (finding that "the public policy underlying the prohibition of underage drinking is substantially different and heightened as compared to public policy concerns behind the regulation of alcohol consumption in general," and therefore concluding the focus of the Cabazon test was the narrow conduct of underage drinking).

This case is similar to Zornes. Like the defendant in Zornes, appellant lost his license after a DWI violation. Although here appellant's license was temporarily revoked instead of permanently canceled, we conclude that Zornes is controlling. As this court has recognized, the policy concerns are substantially increased when dealing with drinking and driving because of the increased threat to the public. That policy remains just as strong in a case where the administrative remedy is license revocation rather than cancellation. We therefore conclude that the appropriate subject of analysis in this case is the narrow conduct of driving after revocation based on a DWI.


After identifying the focus of the Cabazon test, the second step is to apply the test to the conduct. Stone, 572 N.W.2d at 730.

If the conduct is generally permitted, subject to exceptions, then the law controlling the conduct is civil/regulatory. If the conduct is generally prohibited, the law is criminal/prohibitory.

Id. The shorthand test holds that a law is criminal if it violates the state's public policy. Id.

The following factors aid in determining whether an activity violates the state's public policy in a nature serious enough to be considered "criminal":

(1) the extent to which the activity directly threatens physical harm to persons or property or invades the rights of others;

(2) the extent to which the law allows for exceptions and exemptions;

(3) the blameworthiness of the actor;

(4) the nature and severity of the potential penalties for a violation of the law.

Id. The list is not exhaustive, and no single factor is dispositive. Id.

Application of the factors supports the conclusion that driving after revocation based on a DWI is criminal. First, appellant's license was revoked because he drove while intoxicated, an activity that threatens physical harm to people and property. Second, the statute prohibiting driving after revocation does not contain any exceptions or exemptions. Third, appellant knew that his license was revoked, yet chose to drive anyway, and is therefore blameworthy for his conduct. Fourth, a charge of driving after revocation is punishable by a maximum of 90 days in jail and a $700 fine - penalties that are fairly severe and criminal in nature.

Finally, we consider the shorthand test of Cabazon and Stone: whether the conduct violates the state's public policy. In Zornes, the court concluded that Minnesota's policies against driving while intoxicated would be undermined if a license could be canceled on the basis of DWI offenses on a reservation but that cancellation could not be enforced by imposing criminal penalties for subsequent driving on a reservation. 584 N.W.2d at 11. Similarly, it would be contrary to the public policy against drunk driving if the state could not enforce a penalty for a license revocation based on a DWI offense. This factor also indicates the law is criminal/prohibitive in nature. See Robinson, 572 N.W.2d at 724 (finding the factors each indicated that a violation of the statute at issue was a breach of criminal policy, and therefore the court had jurisdiction). Because our focus is on the narrow conduct of driving after revocation based on a DWI, and because all factors indicate that the law prohibiting such conduct is criminal in nature, we conclude the state has jurisdiction under Public Law 280 to enforce the penalty for driving after revocation when the revocation was based on a DWI offense.