author: VANDE WALLE, Chief Justice.

text:
    2001 ND 163
    CITY OF WEST FARGO, Plaintiff and Appellant v. Loren Alan ROSS, Defendant and Appellee.
    No. 20010104.
    Supreme Court of North Dakota.
    Oct. 16, 2001.

      Stephen R. Dawson, Assistant City Attorney, Fargo, ND, for plaintiff and appellant.
    Loren Alan Ross, defendant and appel-lee. No Appearance.
   VANDE WALLE, Chief Justice.

[¶ 1] The City of West Fargo appealed from an order suppressing evidence found as a result of an investigatory stop of Loren Ross’ vehicle. West Fargo contends the trial court erred in its decision that the investigatory stop was not based on a reasonable and articulable suspicion. We reverse the trial court’s suppression of the evidence because the evidence was discovered during a legal investigatory stop, prompted by an officer’s reasonable and articulable suspicion Ross was driving while his operator’s license was suspended.

[¶ 2] Loren Ross made á U-turn with his vehicle at approximately 4:15 a.m. on a West Fargo street. A police officer saw Ross make the turn, and though the turn was legal, the police officer requested a record check for the vehicle’s license plate number. This check revealed that Ross was the vehicle’s registered owner, and his operator’s license was currently under suspension. The police officer drove along the side of Ross’ vehicle and observed the person driving the vehicle matched the physical description of the registered owner, found on the owner’s operator’s license. The officer stopped the vehicle, confirmed Ross’ identity, and arrested him for driving while his license was suspended.

[¶ 3] Ross demanded a jury trial in district court, but before trial he moved the court to suppress the evidence he was driving while his operator’s license was suspended. Ross asserted the evidence was the product of an illegal search and seizure because the police officer did not have a reasonable and articulable suspicion a crime was being committed when he made the investigatory stop of Ross’ vehicle. The trial court granted the motion and suppressed the evidence, stating in its findings “[tjhere is no evidence to indicate [the police officer] knew the Defendant or that he actually knew the Defendant was driving the vehicle.”

[¶ 4] The North Dakota Century Code authorizes a city to appeal an order granting the suppression of evidence if the appeal is not for the purpose of delay, and the evidence is a substantial proof of a material fact in the case. N.D.C.C. § 29-28-07(5); City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 332 (N.D.1990).

[¶ 5] In light of a trial court’s important opportunity to observe and assess the credibility of witnesses, however, this Court accords great deference to a trial court’s decision to suppress evidence. State v. Kenner, 1997 ND 1, ¶ 7, 559 N.W.2d 538. Therefore, “[w]e affirm a trial court’s decision on a motion to suppress unless, after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless we conclude the decision goes against the manifest weight of the evidence.” Id. (quoting State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995)).

[¶ 6] Conversely, “[wjhile we defer to the trial court’s findings of fact, questions of law are fully reviewable” on appeal. Id. Accordingly, the determination of whether the facts show a reasonable and articulable suspicion is fully reviewable on appeal. State v. Kenner, 559 N.W.2d 538, 1997 ND 1, ¶ 7.

[¶ 7] Under facts such as this case presents, a police officer must have a reasonable and articulable suspicion that a motorist has violated or is violating the law in order to legally stop a vehicle. State v. Kenner, 559 N.W.2d 538, 1997 ND 1, ¶ 8. “Although we have recognized that the concept of reasonable suspicion is not readily reduced to a neat set of legal rules, it does require more than a ‘mere hunch’.” Id. (quoting Salter v. North Dakota Dept. of Transp., 505 N.W.2d 111, 114 (N.D.1993)). “The standard is an objective one, and we take into account inferences and deductions that an investigating officer would make that may elude a layperson.” State v. Kenner, 559 N.W.2d 538, 1997 ND 1, ¶ 8 (quoting State v. Smith, 452 N.W.2d 86, 88 (N.D.1990)). “The question is whether a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity.”' Id.

[¶ 8] The police are not “required to point to a single factor which, standing alone, signals a potential violation of the law.” See Geiger v. Baches, 444 N.W.2d 692, 693 (N.D.1989). Instead the police may “assess the situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity.” Id.

[¶ 9] In the present case, the criminal activity suspected by the police officer was that Ross was driving while his license was suspended.

[¶ 10] In State v. Kenner, this Court indicated that if the police had a reasonable and articulable suspicion a certain moving vehicle belonged to a driver whose license was suspended, then an investigatory stop would be legal to determine if the crime of driving with a suspended license was being perpetrated. 559 N.W.2d 538, 1997 ND 1, ¶ 20. We remanded the case to the trial court to determine whether the officer had a reasonable and articu-lable suspicion that the vehicle belonged to a driver whose license was suspended. Id. at ¶ 23.

[¶ 11] In this case, the police officer not only had a reasonable and articulable suspicion that Ross, the owner of the vehicle, had lost his driving privileges, a license check established this fact prior to the stop. Further, in contrast to the facts in Kenner, the police officer observed the driver looked like Ross.

[¶ 12] Because, the police officer had a reasonable and articulable suspicion that a crime was occurring when the investigatory stop was made, the investigatory stop was legal. Accordingly, we reverse the trial court’s suppression of the evidence and remand for further proceedings.

[¶ 13] SANDSTROM, NEUMANN, KAPSNER, and MARING, JJ., concur.


source: Caselaw Access Project

author: MARING, Justice. KAPSNER, Justice,

license: Public Domain

text:
    2001 ND 170
    Jeryle KLEIN, Claimant and Appellant v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee and Lincoln-Oakes Nursery, Respondent.
    No. 20010019.
    Supreme Court of North Dakota.
    Oct. 18, 2001.

      Dean J. Haas, Dietz, Little & Haas, Bismarck, ND, for claimant and appellant.
    Joseph F. Larson II (argued), Larson Law Firm, Jamestown, ND, for claimant and appellant.
    Tracy Lynn Vigness Kolb (argued), Special Assistant Attorney General, Zuger Kirmis & Smith, Bismarck, ND, for appel- • lee.
   MARING, Justice.

[¶ 1] Jeryle Klein appeals from the district court’s judgment affirming a North Dakota Workers Compensation Bureau decision dismissing his claim for benefits because it was not filed timely. We reverse the Bureau’s decision and remand for appropriate action in accordance with this opinion.

I

[¶ 2] Klein began working as a nursery technician for Lincoln-Oakes Nursery in 1991. Sometime between 1993 and 1994, Klein began experiencing soreness in his knees. His symptoms gradually increased, and on October 14, 1996, Dr. David Larsen examined Klein and diagnosed him with severe degenerative arthritis in his left knee. Klein’s medical history revealed that he had previously undergone surgery on his left knee in 1970. After Dr. Larsen examined Klein, he indicated in his notes that Klein would need a total knee replacement within five years. Two months later, on December 12, 1996, Klein had arthroscopic surgery on his left knee. Dr. Larsen indicated in his records: “[Klein] needs a change of lifestyle [sic]. He needs to change his work and change his attitude about his knee. He cannot [sic] continue to abuse it, do heavy work and heavy lifting any longer.” . Klein testified he remembered Dr. Larsen informing him to avoid heavy lifting and to change his line of work. Dr. Larsen did not specifically advise him that his condition was work related. Eventually, on February 5, 1997, Klein had arthroscopic surgery on his right knee, and Dr. Larsen reported in his records that his condition was advanced degenerative arthritis. Again, Dr. Larsen did not specifically advise Klein that his condition was work related.

[¶ 3] After his arthroscopic surgery in February 1997, Klein did not seek medical treatment for his knees again until March 1998 at which time Dr. Joseph Carlson informed him he would need bilateral knee replacement surgery. On December 17, 1998, Klein underwent the knee replacement surgery on both knees. During his recovery period, Lincoln-Oakes Nursery provided him with paid leave. Klein returned to work in February 1999, and his employer informed him on March 8, 1999, that he would only be paid for the hours he worked. Klein responded that he should have submitted a claim through the Workers Compensation Bureau since it would have continued to pay for his lost time.

[¶ 4] Klein filed a claim for Workers Compensation benefits on May 10, 1999, stating in his application that he experienced injuries to his left and right knees while working as a nursery technician. Klein did not specify the date of the injuries, but rather he indicated his injuries gradually developed in “1996-1998-99.” He further stated he sustained injury to his knees as a result of job responsibilities which required “long periods of time performing duties on concrete, bending, lifting, kneeling, climbing, etc. and working in extreme weather conditions.” Lincoln-Oakes Nursery protested the claim on May 13, 1999, stating, “We were told for a number of years by [Klein] that the cause of his knee problems was arthritis.... ”

[¶ 5] On June 17, 1999, the Bureau dismissed Klein’s claim, concluding his injury was not work related and his claim was not filed timely under N.D.C.C. § 65-05-01. After a formal hearing, an administrative law judge (“ALJ”) concluded Klein’s injury was compensable, but the claim was filed untimely because Klein should have known in 1996 or 1997 that his injuries were work related. The Bureau adopted the ALJ’s decision on May 15, 2000, and Klein filed a petition for reconsideration and rehearing. On July 25, 2000, the Bureau denied Klein’s petition. The district court affirmed the Bureau’s decision, and Klein filed a Notice of Appeal on January 12, 2001.

II

[¶ 6] On appeal, we review the Bureau’s decision and not the decision of the district court. N.D.C.C. §§ 28-32-19, 28-32-21. We affirm the Bureau’s decision as long as its findings of fact are supported by a preponderance of evidence, its conclusions of law are supported by its findings of fact, its decision is supported by its conclusions of law, its decision is in accordance with the law, or its decision does not violate the claimant’s constitutional rights or deprive the claimant of a fair hearing. N.D.C.C. §§ 28-32-19, 28-32-21; see also Robertson v. North Dakota Workers Comp. Bureau, 2000 ND 167, ¶ 8, 616 N.W.2d 844. Our review of the Bureau’s findings of fact is limited to determining whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence. Robertson, 2000 ND 167, ¶ 8, 616 N.W.2d 844. Questions of law, including an interpretation of a statute, are fully reviewable on appeal from a Bureau decision. Id.

III

[¶ 7] Klein argues the Bureau erroneously determined his claim was filed untimely because he did not know the arthritis in his knees was work related until April 1999, when Dr. Carlson informed him of the fact.

[¶ 8] From 1977 to 1993 the period for filing a workers compensation claim was one year from the first date a reasonable person knew or should have known the employee suffered a work-related injury. N.D.C.C. § 65-05-01 (1977). This standard, first enunciated in the 1977 amendment to § 65-05-01, triggers the commencement of the limitations period at the moment the claimant first has knowledge of the work-related injury. 1977 N.D. Sess. Laws ch. 579, § 8. Since the 1977 amendment, the statute has been the subject of several modifications, and we have traditionally construed it in favor of the insured workers so that benefits may be extended to all who are fairly entitled to them. White v. North Dakota Workers Comp. Bureau, 441 N.W.2d 908, 910 (N.D.1989). In order to better understand the present statute, we will summarize the statutory and case law history.

[¶ 9] Section 65-05-01, N.D.C.C., was amended in 1977 to provide: “When the actual date of injury cannot be determined with certainty the date of injury shall be the first date that a reasonable person knew or should have known that the injury was related to employment.” 1977 N.D. Sess. Laws ch. 579, § 8. This amendment effectively replaced former standards, including the need-for-medical-attention standard and the incapacity-for-work standard, with the reasonable person standard. Evjen v. North Dakota Workers Comp. Bureau, 429 N.W.2d 418, 420 (N.D.1988). Although the statute was later amended in 1979 and 1989, the version regarding the standard for determining whether a claim is filed timely remained unchanged. See 1979 N.D. Sess. Laws ch. 652, § 1; 1989 N.D. Sess. Laws ch. 766, § 2.

[¶ 10] A review of the cases interpreting the 1977 amendment to section 65 — 05— 01 is helpful to our analysis of the return to the reasonable person standard in 1997. By adopting the reasonable person standard, the Legislature had in mind the ordinary reasonable lay person and not a person learned in medicine. Teegarden v. North Dakota Workmen’s Comp. Bureau, 318 N.W.2d 716, 718 (N.D.1981). Therefore, the time period to file a claim for an injury, whose date of occurrence was not certain, began on the first day a reasonable person, not learned in medicine, knew or should have known that the injury was related to his employment. Id. Even though evidence may be sufficient to convince a claimant’s doctor that work caused the injury, when a doctor does not articulate this causal relationship to the claimant, the ordinary person cannot expect to have such knowledge. Id. at 719. Because the claimant, in Teegarden, was not informed by his physician or anyone else that his respiratory disease was either caused by or related to his work, and because there was no evidence a worker comparable to the one in question should have known that his respiratory disease was caused by work or was work related, we concluded the Bureau had no reasonable basis to find the claimant filed an untimely claim. Id.

[¶ 11] In Evjen, we concluded the evidence supported a Bureau finding that the claimant knew or should have known his headaches were related to his work. 429 N.W.2d at 420. The claimant was told by his physician his headaches were causally related to his employment, and his physician recommended he stop working the afternoon shift because of these headaches. Id. We stated:

Unlike the claimant in Teegarden, Evjen received specific medical advice that his injury was related to his employment and also that it was a significant health problem. Without that advice, this would be a different case because headaches are fairly common afflictions often suffered by many from job stress. A reasonable lay person would not immediately file a claim for compensation upon learning that occasional headaches were work-related.

Id.

[¶ 12] Our Teegarden and Evjen decisions concluded “the Legislature had in mind the ordinary reasonable lay person and not a person learned in medicine.” Evjen, 429 N.W.2d at 419 (quoting Teegarden, 313 N.W.2d at 718). We further concluded: “[t]he Workmen’s Compensation Act is primarily concerned with ‘the well-being of its wage earners.’ ” Teegarden, 313 N.W.2d at 718 (quoting N.D.C.C. § 65-01-01). It is only logical to conclude that the term “reasonable person” refers to a wage worker. Consequently the term “ ‘reasonable’ varies and takes on full meaning from the setting of the employment and the degree of skill or type of skill and knowledge needed to satisfactorily perform the job.” Teegarden, 313 N.W.2d at 718. Also included within the reasonable person standard is the claimant’s intelligence and education. See White, 441 N.W.2d at 911. In White, we said “the reasonableness of a claimant’s conduct should be judged in light of his own education and intelligence and not in light of the standard of some hypothetical reasonable person of the kind familiar to tort law.” Id. The claimant, in White, knew he had pain in his back, and his doctor informed him it was arthritis. Id. He relied on that diagnosis and believed arthritis was not compensable. Id. We held, therefore, a reasonable basis did not exist for the Bureau to conclude that, given his eighth grade education and intelligence, the claimant knew or should have known that he suffered a compensable injury. Id. at 912.

[¶ 13] In Stepanek v. North Dakota Workers Comp. Bureau, 476 N.W.2d 1, 5 (N.D.1991), we concluded mere knowledge of a work-related injury does not support a claim. Rather, the inquiry is whether the claimant knew or should have known that he or she had a compensable work-related injury. Id. In Stepanek, we stated the term “injury” as used in N.D.C.C. § 65-05-01 must be read with reference to a “compensable” injury and explained the rationale:

The Bureau has ignored that an apparently minor injury may develop into a compensable injury and that a doctor may not immediately diagnose an injury as work-related or compensable.... In those instances, the Bureau’s interpretation would impel employees to “rush in with claims for every minor ache, pain, or symptom in order to make sure that any future claim for compensation will not be deemed untimely.”

Id. (citations omitted).

[¶ 14] The Legislature amended the reasonable person standard in 1993 to provide:

the date of injury is the first date that a reasonable person knew or should have known that the employee suffered a compensable injury and the employee was informed by the employee’s treating health care provider that the employee’s work activities are a substantial contributing factor in the development of the employee’s injury or condition.

1993 N.D. Sess. Laws ch. 620, § 3. This amendment adopted the term “compensa-ble injury” and added the requirement that a claimant be informed by a health care provider that the injury was work related before triggering the limitations period. The purpose of this amendment was to better clarify the time in which the employee must file a claim when the date of the injury was not ascertainable. Hearing on S.B.20W Before the Senate Industry, Business, and Labor Comm., 53rd N.D. Legis. Sess. (March 16, 1993) (testimony of Janell Knutson).

[¶ 15] Our Court, however, did not have an opportunity to interpret the 1993 amendment. Our next decision regarding N.D.C.C. § 65-05-01 fell under the 1989 statute because the claimant’s claim arose prior to 1993. Anderson v. North Dakota Workers Comp. Bureau, 553 N.W.2d 496, 498 (N.D.1996). In Anderson, the claimant was diagnosed with carpal tunnel syndrome in 1984. Id. at 497. Her condition worsened in 1994, necessitating surgery. Id. at 498. Soon thereafter, she filed a claim for benefits, but the Bureau dismissed the claim because it concluded Anderson was aware of her condition as early as 1984. Id. We stated:

The fact Anderson sought medical attention in 1984 does not establish she then knew or should have known she had a compensable work injury.... The records prepared by Dr. Hennenfent and Dr. Swanson do not report they advised Anderson about the significance of her condition. Anderson testified she never even saw the records. A claimant is not charged with knowledge of opinions and conclusions in medical records she has not reviewed.

Id. at 499 (citations omitted). Anderson testified that although she felt symptoms at work, she did not know the cause of her injury, and we explained a person who experiences pain and other symptoms while working does not have reason to know of a significant work-related injury. Id. at 500. Without any medical advice, we concluded the seriousness of Anderson’s condition was not apparent in 1984, and therefore, she did not reasonably know she had a compensable work injury. Id.

[¶ 16] The Legislature again amended the statute in 1997 to provide, as it does now:

All original claims for benefits must be filed by the injured employee, .or someone on the injured employee’s behalf, within one year after the injury or within two years after the death. The date of injury for purposes of this section is the first date that a reasonable person knew or should have known that the employee suffered a work-related injury and has either lost wages because of a resulting disability or received medical treatment. Notwithstanding a statute of limitations assertion, the claimant bears the burden of proving any entitlement to benefits.

1997 N.D. Sess. Laws ch. 539, § 1 (emphasis added). This amendment eliminated the requirement that the employee be informed by his health care provider he had a compensable injury and effectively returned to the reasonable person standard used in the majority of jurisdictions. Hearing on H.B. 1266 Before the House Industry, Business and Labor Comm., 55th N.D. Legis. Sess. (March 12, 1997) (testimony of David L. Thiele). By amending section 65-05-01, N.D.C.C., to reflect the policy of the pre-1993 statute, we conclude the Legislature revived our prior case law regarding the reasonable person standard. See, e.g., Anderson, 553 N.W.2d at 499; Stepanek, 476 N.W.2d at 5-6; Evjen, 429 N.W.2d at 419-20; Teegarden, 313 N.W.2d at 718. Thus, in determining whether a claim is filed timely, the only significant difference between the 1997 amendment and the pre-1993 statute is the addition of the language “and has either lost wages because of a resulting disability or received medical treatment.” N.D.C.C. § 65-05-01. This language is very similar to the 1967 amendment to section 65-05-01, N.D.C.C.:

When the actual date of injury cannot be determined with certainty the date of injury shall be the first date the injury or diseased condition culminates in a need for medical attention or an incapacity of the employee for work.

1967 N.D. Sess. Laws ch. 484, § 1. In Evjen, we stated “[t]he effect of the 1967 amendment was to incorporate Beau-champ’s incapacity-for-work trigger and add to it an alternative need-for-medical-attention standard.” 429 N.W.2d at 420. This part of the standard, however, is not at issue in this case because Klein both lost wages as a result of his injuries and received medical treatment. Neither medical attention nor lost wages alone is controlling, however. The critical question here is whether a reasonable lay person, not learned in medicine, knew or should have known that he suffered a work-related injury.

IV

[¶ 17] Although the 1997 amendment does not require knowledge of a “compensable” injury, we have stated the term work-related injury as used in our previous statute must be read with reference to a compensable injury. Stepanek, 476 N.W.2d at 5. To read the statute otherwise would require employees to rush in with claims for minor injuries to ensure that a future claim for compensation will not be untimely. Id. This would cause an absurd result, and our Court construes statutes to avoid such results. Berg v. Berg, 2000 ND 36, ¶ 24, 606 N.W.2d 895. We conclude, therefore, the term “injury” as used in the 1997 amendment means a compensable injury.

[¶ 18] Although certain activities may cause symptoms, such activities do not necessarily cause the condition. The term compensable injury does not include those instances where “the employment acted as a trigger to produce symptoms in a latent and underlying condition if the underlying condition would likely have progressed similarly in the absence of the employment trigger, unless the employment trigger is determined to be a substantial aggravating or accelerating factor.” N.D.C.C. § 65-01—02(9)(b)(6) (1995).

[¶ 19] The Legislature has removed the requirement that the employee be informed by his treating health care provider that his work is a substantial contributing cause of his condition, and we do not mean to suggest that a doctor must specifically inform the claimant that his work activities caused the claimant’s injury in every case. 1997 N.D. Sess. Laws ch. 539, § 1. Certainly, some injuries are obviously caused by the claimant’s work and do not require a doctor to inform the claimant his injuries are work related. In these situations, the limitations period begins to run in the absence of any medical advice. Other complex, insidious injuries, however, require knowledge in medical matters because their causes and effects are not immediately apparent to the reasonable lay person, not learned in medicine. These causes and effects can be complex and controversial even for physicians. A specific diagnosis of a claimant’s condition, therefore, may not be sufficient to commence the limitations period when the diagnosis does not indicate that the condition is work related and when the condition is a common affliction suffered by many individuals.

[¶ 20] We conclude the correct legal standard in the instant case is whether a reasonable person, not learned in medicine, of claimant’s age and intelligence with a GED and a manual labor work life history, knew or should have known in 1996 or 1997, his arthritis was a compensable work-related injury. The ALJ concluded:

Given the objective medical evidence of the advanced state of Klein’s degenerative arthritis by October 14, 1996, the extreme pain that caused him to seek medical treatment for his knee at the time, and the extensive discussions Dr. Larsen had with Klein from October 14, 1996, through February 19, 1997, concerning Klein’s condition and the need for Klein to find different work, a reasonable person in Klein’s position either knew or should have known by February 1997 that his work was related to his knee condition and to his need for medical treatment.

Assuming the ALJ considered Klein’s age, intelligence or level of education, there is no acknowledgment of arthritis as an insidious disease or that a worker comparable to Klein should have known his arthritis was caused by his work. Because we cannot determine whether the correct legal standard was applied by the administrative law judge, we reverse the Bureau’s decision that the claim was not timely filed, and we remand to the Bureau for appropriate action consistent with this opinion.

[¶ 21] VANDE WALLE, C.J.,and NEUMANN, J., concur.

[¶ 22] The Honorable EVERETT NELS OLSON, District Judge, sitting in place of SANDSTROM, J., disqualified.

KAPSNER, Justice,

dissenting.

[¶ 23] I respectfully dissent.

[¶ 24] Despite the disclaimers in ¶¶ 16 and 19, I cannot read the majority opinion other than to suggest that where an “insidious disease” is involved, a doctor must have specifically related to a claimant that work caused or substantially aggravated or accelerated the claimant’s condition. Further, the majority interpolates “compensa-ble” into the statutory reference to a “work-related injury,” thereby requiring that someone with more expertise than the average claimant make a specific cause/effect connection between the work and the injury and communicate the connection to the claimant. Adding such requirements is not compatible with a reasonable person standard which the majority acknowledges is the legislative intent.

[¶ 25] Relation to the claimant by the health care provider that the claimant had a compensable injury was specifically envisioned by the 1993 amendments to N.D.C.C. § 65-05-01. See majority opinion at ¶ 14. But it is a strange process of statutory interpretation to carry forward those two concepts in light of the 1997 amendments. The majority acknowledges in ¶ 16 that the 1997 “amendment eliminated the requirement that the employee be informed by his health care provider he had a compensable injury and effectively returned to the reasonable person standard used in the majority of jurisdictions.”

[¶ 26] By returning to the reasonable person standard, the legislature made the question of whether the claimant knew or should have known he had a work-related injury a question of fact. Into the mix of what a reasonable person knew or should have known will go many factors depending upon the circumstances of each case. Our prior cases have recognized that the reasonable person standard has to incorporate the characteristics of the claimant that deal with his or her ability to understand the situation. White v. N.D. Workers Comp. Bureau, 441 N.W.2d 908, 911 (N.D.1989). With that limitation in mind, the question becomes whether a reasoning mind, acting as fact-finder, could have found Klein reasonably would or should have understood that he had a work-related injury.

[¶ 27] The administrative law judge made the following findings based upon the evidence:

4. Klein’s job at Lincoln Oakes involved considerable bending, stooping, kneeling, climbing, and heavy lifting. The percentage or frequency of time spent at each of these activities on a daily basis was not established with any degree of certainty. Testimony of Toni Berreth; testimony of Jeryle Klein; testimony of Greg Morgenson.
7. Klein first sought treatment from Dr. Larsen on October 14, 1996, when he experienced extreme pain over the medial joint line of his left knee. Dr. Larsen diagnosed Klein with severe degenerative arthritis in the left knee, based on x-rays taken at the time and Klein’s reported history of many years of knee problems, and he discussed Klein’s condition with him, including the need for a total knee replacement within five years. Dep. Ex. 11 at 5; testimony of Jeryle Klein.
8. Klein was aware by October 14, 1996, that he had severe degenerative arthritis in his knees and was aware that the condition had started at least several years earlier. Testimony of Jeryle Klein.
9. Dr. Larsen performed arthroscopic surgery on Klein’s left knee on December 12, 1996, and reported “bone-on-bone advanced degenerative arthritis ... really severe.” Dep. Ex. 12 at 1.
10. Dr. Larsen once again discussed Klein’s severe arthritis with him on December 20, 1996, and although he did not explicitly tell Klein his work was contributing to his arthritic condition, he advised Klein he should change his work because he could no longer do heavy work and heavy lifting. Dep. Ex. 11 at 6; testimony of Jeryle Klein.
11. On January 10, 1997, x-rays showed “moderately severe degenerative arthritis” in Klein’s right knee, even “bone on bone in some areas.” Dep. Ex. 11 at 6.
12. Dr. Larsen performed arthroscopic surgery on Klein’s right knee on February 5, 1997, and reported “advanced degenerative arthritis with bone on bone.” Dep. Ex. 12 at 6.
13. On February 19, 1997, Dr. Larsen showed Klein the videoarthroscopic pictures illustrating the extent of the severe degenerative arthritis in the right knee and once again advised Klein he would soon need total knee replacements, as well as strongly recommending that Klein should find a different line of work that did not require heavy lifting or kneeling. Dep. Ex. 11 at 9. [¶ 28] Based on those findings, the ad-

ministrative law judge concluded:

7. The greater weight of the medical evidence indicates Klein’s work at Lincoln Oakes did substantially accelerate the progression of Klein’s preexisting arthritis and did substantially worsen the severity of the condition....
8. ... Given the objective medical evidence of the advanced state of Klein’s degenerative arthritis by October 14, 1996, the extreme pain that caused him to seek medical treatment for his knee at that time, and the extensive discussions Dr. Larsen had with Klein from October 14, 1996, through February 19, 1997, concerning Klein’s condition and the need for Klein to find different work, a reasonable person in Klein’s position either knew or should have known by February 1997 that his work was related to his knee condition and to his need for medical treatment.

[¶ 29] The Bureau adopted the administrative law judge’s findings and conclusions.

[¶ 30] Given Klein’s explicit discussions with his doctors regarding his condition and the treatment for his condition, a reasoning mind could have determined that he understood the nature and seriousness of his condition. From the findings it cannot be determined that he was specifically advised by his doctors that his knee condition was “caused” by his work. However, he was specifically advised that he should not do work that involved heavy lifting and he clearly knew that heavy lifting was part of his working conditions at the Lincoln-Oakes Nursery. If more than that is required, then the “more” must be a specific statement by the physician that work is causing or aggravating or accelerating the condition. But this is precisely the condition that was eliminated by the 1997 amendments to N.D.C.C. § 65-05-01.

[¶ 31] The issue for this Court should be whether a reasoning mind reviewing the evidence could have found that a reasonable person of Klein’s intelligence and education should have known in February 1997 that he suffered a work-related injury. Because I believe the evidence supports the findings made, I would affirm based upon the failure to file the claim within one year.

[¶ 32] Paragraph 17 of the majority opinion justifies its interpolation of the word “compensable” into N.D.C.C. § 65-05-01, despite the fact that the legislature has dropped it, as follows: “To read the statute otherwise would require employees to rush in with claims for minor injuries to ensure that a future claim for compensation will not be untimely.” This ignores the plain language of N.D.C.C. § 65-05-01, and Stepanek v. N.D. Workers Compensation Bureau, 476 N.W.2d 1 (N.D.1991), offered by the majority, provides little support for this assertion. At the time applicable to Stepanek, N.D.C.C. § 65-05-01 required filing within one year of the date of injury. The statute provided:

The date of injury for purposes of this section shall be the actual date of injury when such can be determined with certainty by the claimant and bureau. When the actual date of injury cannot be determined with certainty the date of injury shall be the first date that a reasonable person knew or should have known that the injury was related to employment.

Stepanek, 476 N.W.2d at 4.

[¶ 33] Although Stepanek could identify an injury event in 1986, she did not file her claim until 1989. Id. at 2. The Bureau argued that because Stepanek knew her actual date of injury, her filing was untimely. Id. at 3. This Court held the claim was timely filed because Stepanek could not have reasonably known that the injury was compensable as she had not missed work after the event and had not sought medical attention until 1988. Id. at 6.

[¶ 34] By contrast, N.D.C.C. § 65-05-01, as amended in 1997 and applicable to Klein, no longer refers to the “actual date of injury.” And, in addition to the knowledge of a reasonable person that the worker has a work-related injury, the section requires that the worker “has either lost wages because of a resulting disability or received medical treatment.” The combination of these standards to start the period of limitations means there is little incentive to rush in with claims for minor injuries.

[¶ 35] Reading back into the statute provisions which the legislature has removed subverts the purposes of a period of limitations — to assure timely filing of claims and timely receipt of benefits. Under these facts, I cannot hold that a reasonable person in the position of Klein would not have understood that he had a work-related injury that was severe in nature and had resulted in both lost wages and significant medical treatment. The Bureau made the appropriate findings, and I would affirm.

[¶ 36] EVERETT NELS OLSON, District Judge, concur.

      . The record does not reveal who paid for Klein's lost wages and medical expenses for his arthroscopic surgeries in 1996 and 1997. It does reveal, however, that his employer was paying lost wages for a period of time after his bilateral knee replacements and that it was his employer’s refusal to continue to pay full-time lost wages that prompted Klein to remark he should have filed a worker's compensation claim. "When payment of income benefits have been made by a private employer-employee benefit association or insurance plans, this has usually, but by no means invariably, been held to toll the statute.” 7 Arthur Larson & Lex K. Larson, Larson’s Workers' Compensation Law § 126.07[3] (2001). Klein did not raise the issue of the application of the doctrine of equitable tolling of a statute of limitations and we, therefore, do not address it.


author: GILBERTSON, Justice

text:
    2001 SD 120
    John A. KNIGHT and Maria Carmen Knight, Plaintiffs and Appellants, v. Stanley I. MADISON and Marilynn Madison, individually and in their capacities as co-trustees of the U/D/T dated May 3, 1991, Defendants and Appellees.
    No. 21829.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2001.
    Decided Sept. 26, 2001.

      James F. Margadant of Sieler & Marga-dant, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.
    Ronald W. Banks of Banks, Johnson, Colbath & Kerr, Rapid City, South Dakota, Attorneys for defendants and appellees.
   GILBERTSON, Justice

[¶ 1.] John and Maria Knight (Knight) own property served by an easement over and upon the property of Stanley and Mar-ilynn Madison (Madison). Knight sought a judicial determination that he had an exclusive right to use the easement. The circuit court dismissed the claim. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Knight built a home on realty designated by a plat as lot 14. The only access from lot 14 to a public road known as the South Canyon Road is by use of the .78 acre strip. This strip was referred to as a “road” and “lane” on the plats. The plats contain no language that indicates the “road” or “lane” was to be dedicated to the public use or that the public was granted some type of access to it. Knight built a driveway over the strip and has maintained the driveway at his own expense. Madison owns this private road along with other property adjoining it. Although Madison has never interfered with, nor has he disputed, Knight’s right to use the easement for access to lot 14, Knight brought this declaratory judgment action against Madison in 1997, seeking to establish the parties’ rights in the .78 acre strip. Knight claimed his right to use the strip for ingress and egress, under an implied easement, was exclusive as to all parties other than Madison and his invitees. At one point, Knight attempted to enforce his claim of control by erecting a gate to keep out those he did not want to use the road. On motion for summary judgment, the circuit court dismissed Knight’s claim, concluding that his right to use the .78 acre strip did “not include the right to limit, restrict, or define the rights of [Madison] or others to use the roadway for all reasonable purposes consonant with the limited grant implied by the recorded plats and grants.” Knight appeals the dismissal of his claim.

STANDARD OF REVIEW

[¶ 3.] The parties submitted this case to the circuit court on stipulated facts. Therefore, on review of a motion granting summary judgment, we need only determine whether the circuit court correctly applied the law. Westfield Ins. Co., Inc. v. Rowe, 2001 SD 87, ¶4, 631 N.W.2d 175, 176.

ANALYSIS AND DECISION

[¶ 4.] The parties agree that Knight has an implied easement over the .78 acre strip, arising from the plats filed by James. An easement is “an interest in the land in the possession of another which entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists.” Gilbert v. KTI, Inc., 765 S.W.2d 289, 293 (Mo.App.1988) (citations omitted).

[¶ 5.] The first question is whether the easement is public or private. An easement may be dedicated to public use if the owner clearly acts to dedicate the easement and the public entity accepts the dedication. Tinaglia v. Ittzes, 257 N.W.2d 724, 728-29 (S.D.1977) (citations omitted). Neither Madison nor any previous owner has expressly or impliedly dedicated the easement to public use. Beyond that, no public entity accepted the easement. Therefore, the easement remains private.

[¶ 6.] The second question is whether Knight, pursuant to the authority of his easement, has the right to exercise control over access to the road beyond his personal right of ingress and egress to his property. SDCL 43-13-5 provides “[t]he extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.” Under this statute, neither the physical size nor the purpose or use to which an easement may be put can be expanded or enlarged beyond the terms of the grant of the easement. See Townsend v. Yankton Super 8 Motel, 371 N.W.2d 62, 165-66 (S.D.1985). As the holder of a private easement, Knight has the right to limited use or enjoyment of the property “that is not inconsistent with the general use of the property by the owner.” Abbott v. Nampa School Dist. No. 181, 119 Idaho 544, 808 P.2d 1289, 1293 (1991). This rule of law applies whether Knight obtained his easement by a specific written grant, plat or in any other manner.

[¶ 7.] Knight claims his right to use the property includes the right to exclude all users other than Madison, “[his] agents, employees, and invitees.” No persuasive legal authority is provided for this theory and it contradicts general easement law. Unless the owner of the servient estate expressly agrees otherwise, the owner reserves the right to use the property in any manner or for any purpose, so long as the owner does not interfere with the use or enjoyment of the easement. In this case, that use or enjoyment is ingress and egress to lot 14 by Knight. See Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.1998); Coomer v. Chicago and N.W. Transp. Co., 91 Ill.App.3d 17, 46 Ill.Dec. 812, 414 N.E.2d 865, 871 (1980); City of Los Angeles v. Ingersoll-Rand Co., 57 Cal.App.3d 889, 129 Cal. Rptr. 485, 488 (1976); Nicholls v. Healy, 37 Mich.App. 348, 194 N.W.2d 727, 728 (1971).

[¶ 8.] The fee owner of a road has the right to erect a gate to limit public or third-party access to the road, as long as this does not interfere with the ingress and egress rights of the easement holder. Conversely, an easement holder does not have the authority per his easement to determine who shall be allowed access to the road and who shall not. SDCL 43-2-1 provides “the ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others.” Thus, the authority to determine who shall be allowed access rests with Madison. Moreover, because the easement exists solely for the purpose of ingress and egress to his lot, that is the limit of Knight’s right to any access of what is designated on the plats as the “road” or “path.” The owner’s reserved rights include allowing others to use the right of way or granting additional easements over the property, so long as the additional uses do not interfere with Knight’s easement. See Robert Jackson Real Estate Co., Inc. v. James, 755 S.W.2d 343, 346 (Mo.App.1988); Deery v. Foster, 15 Mass.App.Ct. 564, 447 N.E.2d 1251, 1254 (1983); Associates of Philipsburg v. Hurwitz, 292 Pa.Super. 406, 437 A.2d 447, 451 (1981).

[¶ 9.] Knight has not argued, nor does it appear from the record before us, that Madison has in any way interfered with Knight’s use or enjoyment of the ease-' ment. The record clearly supports the trial court’s view of the undisputed evidence on this point.

[¶ 10.] This case appears to be a preemptive action to prohibit Madison from granting additional easements or allowing the public to use the right of way. As discussed above, Knight, as holder of an easement, does not have the right to control or interfere with access to the road. As such, the action was properly dismissed.

[¶ 11.] Judgment is affirmed.

[¶ 12.] SABERS, Acting Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.

[¶ 13.] MILLER, Retired Chief Justice, having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . The relevant chain of title is as follows: In 1928, James Russell Madison, Jr. (James) purchased approximately 870 acres of land in Pennington County, South Dakota. This parcel encompasses the properties of Knight and Madison. In 1931, James platted lot 1 on the property. Later that year, lot 1 was sold to Jessie Moses. Jessie eventually transferred lot 1 to Frank Moses and Evelyn Moses. James further subdivided his property in 1937 when he platted lots 3 through 14. Lot 14 was located between lot 1 and the South Canyon Road, which is the only road servicing the lots. To provide access to lot 14 and other land-locked lots, James included a strip of land separating lots 1 and 14 from lots 3, 10-13. That same year, James conveyed lot 14 to Frank Moses. Frank transferred the property to himself and his wife, Margaret, as joint tenants. Lot 14 later passed to Margaret upon Frank's death. James revised the plat in 1951, replacing lots 6 through 13 with lots 5 and 6, but leaving the .78 acre strip intact. In 1975, Knight purchased lots 1 and 14 from Margaret Moses. It is unclear from the record how Margaret received title to lot 1, which was originally owned by Frank and Evelyn. In any event, the parties do not dispute that Knight is the proper owner of lot 1. Title to the .78 acre strip ultimately passed to Madison from James.

      . As part of its ruling, the trial court ordered removal of the gate as Madison had not consented to its construction.

      . Herein the plat created an easement in favor of Knight but did not define its terms. Thus, we rely on the general law of easements to determine its terms. We express no opinion on those written easements where the specific rights and obligations of the parties are completely set forth in the document. In those instances such rights and obligations are created and defined by the agreement itself.


author: LAVORATO, Chief Justice.

text:
    STATE of Iowa, Appellee, v. Thomas Alan SNYDER, Appellant.
    No. 00-1339.
    Supreme Court of Iowa.
    Oct. 10, 2001.

      Trida Johnston, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, for appellee.
   LAVORATO, Chief Justice.

In State v. Peters, 525 N.W.2d 854 (Iowa 1994), we held that “motor vehicle” in Iowa Code section 321J.2 — the OWI statute'— included a snowmobile. The decisive issue here is whether “motor vehicle” in Iowa Code section 321.561 — the driving while barred statute — includes a snowmobile. The district court concluded that it did, and convicted the defendant, Thomas Snyder, of driving while barred. Snyder appeals, challenging his conviction. We affirm.

I.Background Facts and Proceedings.

On December 27, 1999, an Iowa Department of Natural Resources officer saw Snyder and another man driving snowmobiles on the road right-of-way of Wheeler-wood Drive in Cerro Gordo County, Iowa. The snowmobile Snyder was driving was missing a bright orange flag required by Iowa Code section 321G.13(9) (1999). The officer stopped both vehicles and asked to see Snyder’s driver’s license. Snyder told the officer that his license was suspended for non-payment of fines. The officer advised Snyder that the county attorney would charge him with driving while barred. The officer then issued Snyder a citation for operating a snowmobile on a public roadway without a bright orange flag.

Snyder’s driving record shows the following relevant violations:

10-27-98: Non-payment of fines, indefinite suspension.
04-07-99: Non-payment of fines, indefinite suspension.
11-29-99: Habitual violator, remains under suspension until 02-27-00 and until financial responsibility is met ($200 civil penalty not paid).
12-03-99: Habitual offender, barred for two years, remains barred until 12-03-01.

On January 27, 2000, the State charged Snyder with driving while barred. See Iowa Code § 321.561. Later, Snyder moved to dismiss. He contended that operation of a snowmobile on the public roadway while one’s license is revoked under the habitual offender provision of Iowa Code chapter 321 is not a violation of section 321.561. The district court denied the motion.

Following Snyder’s waiver of a jury trial, the parties tried the case .to the district court based on minutes of testimony. The court found Snyder guilty.

II. Issues.

On appeal, Snyder contends the district court erred in finding sufficient evidence to support his conviction. In support of this contention, Snyder again argues the operation of a snowmobile on the public roadway, while one’s license is revoked under the habitual offender provision of Iowa Code chapter 321, is not a violation of section 321.561.

III. Scope of Review.

Our review of Snyder’s sufficiency-of-the-evidence challenge is for correction of errors of law. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). We uphold a verdict provided substantial evidence supports the charge. State v. Mitchell, 568 N.W.2d 493, 502 (Iowa 1997). We view the evidence in the light most favorable to the State. Id. Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Hopkins, 576 N.W.2d at 377.

Although Snyder’s contention is the alleged insufficiency of the evidence to support his conviction, the decisive issue is whether section 321.561 applies to Snyder’s conduct. See State v. Casey’s Gen. Stores, Inc., 587 N.W.2d 599, 600-01 (Iowa 1998). Our analysis must therefore begin with our interpretation of section 321.561 and end with our determination of whether the evidence was sufficient to sustain the conviction based on that interpretation. See State v. Slayton, 417 N.W.2d 432, 434-35 (Iowa 1987) (court interpreted “intent to use” under going armed with intent statute, then determined whether sufficient evidence sustained defendant’s conviction under its interpretation of the statute).

To the extent Snyder’s challenge turns on the interpretation of section 321.561, our review is for correction of errors at law. State v. Ceron, 573 N.W.2d 587, 589 (Iowa 1997). In interpreting statutes, our goal is to ascertain and give effect to legislative intent. Id. at 590. When more than one statute is relevant, we consider the statutes together and try to harmonize them. Id. We may not search for meaning beyond the express terms of a statute when the statute is plain and its meaning clear. State v. Chang, 587 N.W.2d 459, 461 (Iowa 1998).

IV. Whether Iowa Code Section 321.561 Covers the Conduct of a Habitual Offender Who Operates a Snowmobile.

A. Applicable law.

Iowa Code section 321.561 provides in relevant part:

It shall be unlawful for any person found to be a habitual offender to operate any motor vehicle in this state during the period of time specified in section 321.560 ...

B. Analysis.

Iowa Code section 321.1(42)(a) defines a motor vehicle as a

vehicle which is self-propelled, but not including vehicles known as trackless trolleys which are propelled by electric power obtained from overhead trolley wires and are not operated upon rails.

A “vehicle,” with certain exceptions not applicable here, is “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway.” Iowa Code § 321.1(90).

Before 1989, the legislature defined a snowmobile as

any self-propelled vehicle weighing less than one thousand pounds which utilizes wheels with low pressure tires and is designed to operate on land or ice or is equipped with sled-type runners or skis, endless belt-type tread, or any combination thereof, and is designed for travel upon snow, land or ice, except any vehicle registered as a motor vehicle under chapter 321.

Iowa Code § 321G.1(2) (1981) (emphasis added).

In 1989, the legislature eliminated the italicized language, thus defining a “snowmobile” as a

motorized vehicle weighing less than one thousand pounds which uses sled-type runners or skis, endless belt-type tread, or any combination of runners, skis, or tread, and is designed to travel on snow or ice.

1989 Iowa Acts ch. 244, § 1 (codified at Iowa Code § 321G.1(18) (1999)).

When the legislature amends a statute, a presumption arises that it intended to change it. State v. Dean, 357 N.W.2d 307, 309 (Iowa 1984). The legislature’s 1989 change to the definition of “snowmobile” removed the exception that excluded “snowmobile” from the definition of “motor vehicle” in Iowa Code chapter 321. In addition, the legislature changed the definition of “snowmobile” from a “self-propelled vehicle” to a “motorized vehicle.” With these changes, we think the legislature intended to bring the definition of “snowmobile” within the broad definition of “motor vehicle” in section 321.1(42)(a). We therefore conclude that “motor vehicle” in section 321.561 includes a snowmobile. See Iowa Code § 321.1 (providing that definitions in section 321.1 apply to all provisions of chapter 321).

Nevertheless, Snyder insists that an Iowa Court of Appeals decision—State v. Gobeli, 342 N.W.2d 898 (Iowa Ct.App. 1983)—controls and dictates a reversal of his conviction. For reasons that follow, we disagree.

In Gobeli, the court of appeals reversed a defendant’s conviction under Iowa Code section 321.561. The facts in Gobeli are similar to the facts here. The defendant operated a snowmobile on the shoulder of a city street and crossed a highway “while his license was suspended as a habitual violator.” Id. at 899. The issue was “whether a snowmobile is a motor vehicle under section 321.561.” Id.

The court in Gobeli agreed with the State that the definition of “motor vehicle” in chapter 321 was broad enough to include snowmobiles. Id. Nevertheless, the court concluded that chapter 321 did not cover snowmobiles. The court based its conclusion on the following: (1) chapter 321G is a special statute enacted to exclusively regulate snowmobiles, thereby removing them from chapter 321, a general statute regulating all motor vehicles; (2) registration and licensing requirements for snowmobiles found in chapter 321G differ from those for motor vehicles in chapter 321; (3) the definition of “snowmobile” in section 321G.1(2) (1981) includes “any self-propelled vehicle ... except any vehicle registered as a motor vehicle under chapter 321”; and (4) a person cannot be convicted of driving a snowmobile without a license when chapter 321G does not require a license for operation of a snowmobile. See id. at 899-900.

Snyder insists that Gobeli is still good law and applies in this case. He relies on the reasoning in Gobeli that related statutes must be read in pari materia and the provisions of the specific statute regulating snowmobiles, chapter 321G, should control over the general statute, chapter 321. See id. at 899. He argues that the only part of the Gobeli reasoning that no longer applies is the changed definition of “snowmobile.”

As mentioned, the legislature eliminated the exception that excluded snowmobiles from the definition of motor vehicle in chapter 321. It did so following the Gobeli decision. By the change, we think the legislature signaled its intention to subject the operators of snowmobiles to the provisions of chapter 321 where those provisions are applicable and not in conflict with the provisions of chapter 321G.

Chapter 321G contains no prohibition against driving while barred. There is, therefore, no conflict between section 321.561 and any of the provisions of chapter 321G. If the goal of the legislature, as the States argues, is to preclude a person from operating any motor vehicle during a period when that person has proven too irresponsible to have driving privileges, operation of a snowmobile — a “motor vehicle” by definition — should fall under section 321.561.

In Peters, we questioned the viability of Gobeli. 525 N.W.2d at 859. In Peters, an officer had seen the defendant operating a snowmobile on a downtown sidewalk and on the street in a careless and reckless manner. Id. at 855. The defendant was charged with, and convicted of, OWI, second offense, in violation of Iowa Code section 321J.2 (1991) (prohibiting operation of a motor vehicle while intoxicated). The defendant contended that the State could charge him only under Iowa Code section 321G.13(3) (prohibiting operation of snowmobile while intoxicated). Id. at 856-57. A conviction under section 321G.13(3) carried a much lesser penalty than a conviction under section 321J.2. Cf. Iowa Code § 321G.14 (1991) (simple misdemeanor), with § 321J.2(2)(b) (aggravated misdemeanor).

The defendant in Peters argued that Gobeli was dispositive of what he considered to be a conflict between sections 321J.2 and 321G.13(3). We disagreed and distinguished Gobeli:

None of these facts [present in Gobeli] are present here. So, while an argument could be made that the registration and licensing provisions of chapter 321 and 321G could not be read in pari materia, no comparable argument could be made about section 321J.2 and section 321G.13(3). Moreover, the deletion of the language “except any vehicle registered as a motor vehicle under chapter 321” from the definition of snowmobile in section 321G.1(2) leaves the viability of Gobeli in doubt.

Peters, 525 N.W.2d at 859 (citations omitted).

Contrary to the defendant’s contention, we concluded in Peters that sections 321 J.2 and 321G.13(3) could be read in pari mate-ria and were not conflicting. Id. at 858. We held that a snowmobile is a motor vehicle as defined in Iowa Code section 321.1(2)(a) (1991) (renumbered as section 321.1(42)(a) in the 1993 code) and applied in Iowa Code section 321J.2. Id. at 860. Because there was no conflict between sections 321 J.2 and 321G. 13(3), the State had the discretion to charge the defendant under either section. Accordingly, we upheld the defendant’s conviction under section 321J.2. Id.

Snyder argues Peters does not apply to his case because Peters is not a “licensing case.” To support his argument, Snyder points to our recognition in Peters that if the registration and licensing provisions were at issue, rather than the operating while intoxicated provisions of chapters 321 and 321G, a different result might be possible. See Peters, 525 N.W.2d at 859 (“So, while an argument could be made that the registration and licensing provisions of chapter 321 and 321G could not be read in pari materia, no comparable argument could be made about section 321J.2 and section 321G.13(3).”).

While acknowledging “an argument could be made that the registration and licensing provisions of chapter 321 and 321G could not be read in pari materia,” we nevertheless called into doubt the viability of Gobeli because of the legislature’s amendment to the definition of “snowmobile.” Id. In addition, we later made clear in State v. Bums that a case such as we have here is not a “licensure case” and has nothing to do with licensing or registration provisions of chapter 321 and 321G. 541 N.W.2d 875, 876 (Iowa 1995).

In Bums, the State charged the defendant with a violation of section 321.561 for driving his Chevrolet Blazer, with a trailer attached, on his farm during a period of prohibited operation resulting from his conviction as a habitual offender. Id. The defendant argued that section 321.561 did not apply to him because he was driving on his own property and Iowa Code section 321.174(1) requires a driver’s license only when a person is driving “upon a highway in this State.” Id.

We acknowledged that section 321.174(1) does not require a driver’s license to operate a motor vehicle on one’s own property. Id. However, we concluded the penalty provided in section 321.561 is not tied to unlicensed operation. Id. In reaching this conclusion, we reasoned that unlicensed status is not the factual predicate for the statutory penalty of section 321.561:

Nowhere does the statutory language [of section 321.561] distinguish between operation on a public highway and operation at some other location. Because defendant had been convicted as an habitual offender, any operation of a motor vehicle during the prohibited period was proscribed by this statute.

Id. (emphasis added.)

We further concluded in Bums that even if the defendant had been driving a farm vehicle qualified for a licensing exemption under Iowa Code section 321.176(2), he could still be convicted of driving while barred under section 321.561. Id. at 877. This was so, we reasoned, because “the section 321.561 penalty is predicated on driving following conviction as an habitual offender rather than driving in violation of statutory licensing provisions.” Id.

Snyder tries to distinguish Bums from his case. He argues that the defendant in Bums was operating a vehicle regulated under chapter 321, whereas he, Snyder, was operating a- snowmobile regulated through a separate statute, chapter 321G. Snyder further argues that snowmobiles are regulated through the provisions of chapter 321G where they are in conflict with chapter 321. He points out that a comparison of the two chapters shows differences in licensing requirements and provisions for prohibited conduct, and that chapter 321 prohibits driving while barred while chapter 321G does not. These differences, Snyder contends, result in a conflict between chapters 321 and 321G. For this reason chapter 321G, which does not prohibit driving while barred, should control.

As mentioned, the differences between chapters 321 and 321G concerning driving while barred do not amount to a conflict. Section 321.561 cannot conflict with a provision of chapter 321G because no comparable provisions exist in chapter 321G. Cf. Peters, 525 N.W.2d at 858 (holding that Iowa Code chapter 321J provisions punishing repeat offenders of OWI statute supplemented section 321G.13(3) because there are no provisions in chapter 321G to punish repeat offenders of section 321G.13(3)).

As our analysis shows, “motor vehicle” in section 321.561 includes a snowmobile, thereby satisfying the statutory language of section 321.561 (“It shall be unlawful for any person found to be a habitual offender to operate any motor vehicle in this state during the period of time specified in section 321.560....” (Emphasis added.)). There was substantial evidence that Snyder was operating a snowmobile — a motor vehicle for purposes of section 321.561— during a period of time he was prohibited from doing so as a result of being convicted as a habitual offender.

V. Disposition.

Because there was substantial evidence that Snyder violated Iowa Code section 321.561, the district court did not err in finding him guilty of violating that provision. Finding no error, we affirm.

AFFIRMED.


author: CARTER, Justice.

text:
    STATE of Iowa, Plaintiff, v. IOWA DISTRICT COURT FOR WARREN COUNTY, Defendant.
    No. 00-0523.
    Supreme Court of Iowa.
    Oct. 10, 2001.
    Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Kevin Parker, County Attorney, and Ryan Ellis, Assistant County Attorney, for plaintiff.
    Kenneth J. Weiland, Jr. of Weiland Law Firm, Des Moines, for defendant.
   CARTER, Justice.

The State challenges by means of an original certiorari action the authority of the district court to reconsider a criminal sentence imposed on Scott Avon who pled guilty to the offense of manufacturing methamphetamine in violation of Iowa Code section 124.401(l)(c)(6) (1999). Avon was originally sentenced to an indeterminate term not to exceed ten years and was ordered to serve a mandatory one-third minimum sentence as provided in Iowa Code section 124.413. Avon requested reconsideration of this sentence pursuant to Iowa Code section 902.4. The district court granted the motion. The court vacated the original sentence and placed Avon on probation. In its order reconsidering the sentence, the court stated that it was waiving the mandatory minimum sentence imposed by section 124.413.

The State asserts that section 902.4 permits reconsideration of a felony sentence other than “a felony for which a minimum sentence of confinement is imposed.” Because Avon’s original sentence required him to serve one-third of the time imposed, the State urges that he was not eligible for a reconsideration of sentence. The court of appeals rejected that contention and upheld the authority of the district court to reconsider Avon’s sentence.

With respect to the purported waiver of the mandatory minimum sentence, the court of appeals concluded that it was not clear what the district court intended in that regard. It held that, if defendant’s probation is revoked and his original sentence reinstated, the sentence continues to be subject to the mandatory minimum imposed by section 124.413. It qualified that conclusion by declaring that, if, in reimposing the sentence, the district court makes a finding of mitigating circumstances on the record, this could justify a waiver of the mandatory minimum sentence pursuant to section 901.10. We granted further review of the court of appeals decision. After reviewing the record and considering the arguments presented, we affirm the decision of that court, sustaining the writ in part and annulling it in part.

The court of appeals concluded that the words “a felony for which a minimum sentence of confinement,” as used in section 902.4, were intended to embrace convictions for which no other legal sentence was available. In its argument on further review, the State maintains that the court of appeals’ interpretation of section 902.4 is directly contrary to the interpretation given that statute by this court in State v. Canas, 571 N.W.2d 20, 23 (Iowa 1997).

Iowa Code section 902.4 provides:

For a period of ninety days from the date when a person convicted of a felony, other than a class “A” felony or a felony for which a minimum sentence of confinement is imposed, begins to serve a sentence of confinement, the court, on its own motion or on the recommendation of the director of the Iowa department of corrections, may order the person to be returned to the court, at which time the court may review its previous action and reaffirm it or substitute for it any sentence permitted by law.

(Emphasis added.)

In Canas a sentence of confinement imposed on the defendant for delivery of cocaine was reconsidered under section 902.4 while defendant was simultaneously serving a sentence on an unrelated conviction for possession of cocaine with intent to deliver. The reconsideration resulted in vacation of the sentence of imprisonment on the delivery charge and the placing of defendant on probation with respect to that charge. Defendant continued to be imprisoned on the possession-with-intent-to-deliver charge. He was ultimately paroled on that charge and later discharged from parole. His probation on the delivery charge continued and was subsequently revoked.

In a dispute that resulted over the credit that Canas should receive for time served after he was returned to prison on the probation revocation, he argued that the reconsideration of his sentence was unlawful because his sentence was subject to a minimum sentence of confinement. Based on that premise, he urged that he should have been receiving credit against his sentence during the time that he was out of prison on probation. We rejected Canas’s contention by concluding that, “[hjaving requested reconsideration of his [delivery] sentence, Canas cannot now claim it was reversible error for the court to grant his request.” Canas, 571 N.W.2d at 23.

In considering Canas’s argument concerning why the court did not have authority to reconsider his sentence, we stated that “[a] court is not allowed to reconsider a felony conviction for which a minimum sentence of confinement is imposed. Iowa Code § 902.4.” We agree with the court of appeals that with respect to the issue now before us that statement was not a binding interpretation of the meaning of section 902.4.

The court of appeals attempted to buttress its holding that Avon’s conviction did not involve a felony for which a minimum sentence of confinement is imposed by concluding that section 124.413 does not impose a sentence but rather imposes a limitation on the opportunity for parole. We do not find that distinction to be helpful in deciding what the legislature intended in enacting section 902.4. We have characterized section 124.413 as a sentenc-mg statute. See State v. Iowa Dist. Ct., 630 N.W.2d 778, 780 (Iowa 2001) (“Defendant’s sentence is ... subject to section 124.413.”). That is consistent with our conclusion that, although statutes requiring a minimum period of confinement affect the power of the board of parole, it is the province of the court to decide the applicability of those statutes as part of the sentencing process. State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000); State v. Wilson, 314 N.W.2d 408, 409 (Iowa 1982).

The issue in the present case is not whether Avon’s sentence included a minimum sentence of confinement in the generally accepted sense. We are instead required to determine what felony sentences the legislature intended to exclude from reconsideration under section 902.4 by using the language “other than ... a felony for which a minimum sentence of confinement is imposed.” In determining the meaning of those words, some aid is found in the language of the statute which recognizes that a revised sentence following reconsideration may be “any sentence permitted by law.” This language appears to provide the measure of the court’s sentencing authority on reconsideration. Hence, it is reasonable to view the language at issue here as referring in a general way to those felonies for which no other legal sentence is available. No reason has been made to appear why, if a court has authority to grant probation in the first instance, it should not have the same authority under the shock-probation concept embraced in section 902.4. A specific identification of a felony for which no other legal sentence is available is contained in the reference to “a class ‘A’ felony” that immediately precedes the language that we are interpreting. We are convinced that the language that follows is intended as a general reference to all other felonies for which no other legal sentence is available.

Support for our conclusion is gained from the application of two settled rules of statutory interpretation. These are the rule of noscitur a sociis, which provides that the meaning of words in a statute are to be ascertained in light of the meaning of the words with which they are associated, Wright v. State Bd. of Eng’g Exam’rs, 250 N.W.2d 412, 413 (Iowa 1977), and the rule of ejusdem generis, which states that general words that follow specific words are tied to the meaning and purpose of the specific word. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606 N.W.2d 376, 380 (Iowa 2000).

For the reasons stated, we conclude that the court of appeals was correct in upholding the authority of the district court to reconsider Avon’s sentence. We also conclude that the court of appeals was correct in declaring that, if Avon’s probation is revoked and a new sentence of confinement is imposed, that sentence will be subject to the one-third minimum sentence provided in section 124.413, unless the court makes a finding of mitigating circumstances on the record so as to justify waiver of the mandatory minimum sentence as provided in section 901.10.

We have considered all issues presented and conclude that the decision of the court of appeals should be affirmed. The writ of certiorari is sustained in part and annulled in part.

DECISION OF COURT OF APPEALS AFFIRMED; WRIT SUSTAINED IN PART AND ANNULLED IN PART.

All justices concur except STREIT, J., who takes no part.


text:
    In re the DETENTION OF Kenneth John EWOLDT. State of Iowa, Appellee, v. Kenneth John Ewoldt, Appellant.
    No. 00-0792.
    Supreme Court of Iowa.
    Oct. 10, 2001.
    Mark Smith, First Assistant Public Defender, Des Moines, and Christopher A. Cooklin, Assistant Public Defender, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Roxann M. Ryan and Virginia Barchman, Assistant Attorneys General, for appellee.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   CARTER, Justice.

The respondent, Kenneth Ewoldt, appeals from a judgment declaring him a sexually violent predator under Iowa Code chapter 229A (1999). The finding was made upon evidence that respondent has been convicted of four sexually violent offenses, suffers from a mental abnormality known as pedophilia and is more likely than not to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility. Respondent was ordered to be confined until such time as his mental abnormality has changed so that he is safe to be at large.

On appeal respondent urges that (1) his trial counsel was ineffective in failing to argue that the State should have been required to prove his mental disorder completely impaired his volitional control, (2) a one-year time limit should have been imposed on the State in proving he was more likely than not to reoffend, and (3) Iowa Code chapter 229A violates due process and is a punitive statute to which double jeopardy and ex post facto protections apply. We conclude Iowa Code chapter 229A does not require a showing that respondent lacked complete volitional control over his predatory behavior, or that he was more likely than not to reoffend within one year. We further conclude chapter 229A is civil in nature and does not violate due process, double jeopardy, or ex post facto protections. Consequently, we affirm the judgment of the district court.

I. Required Degree of Volitional Impairment.

In arguing he could not be found to be a sexually violent predator absent a showing that he lacks complete volitional control over his predatory behavior, respondent seizes upon specific language contained in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). The Court noted in that case that states have implemented statutes comparable to the Kansas act for the purpose of detaining a narrow class of individuals “who are unable to control their behavior and who thereby pose a danger to the public health and safety.” Hendricks, 521 U.S. at 357, 117 S.Ct. at 2079, 138 L.Ed.2d at 512. The Court further observed:

A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a “mental illness” or “mental abnormality.” These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Kansas Act is plainly of a kind with these other civil commitment statutes: It requires a finding of future dangerousness, and then links that finding to the existence of a “mental abnormality” or “personality disorder” that makes it difficult, if not impossible, for the person to control his dangerous behavior.

Id. at 358, 117 S.Ct. at 2080, 138 L.Ed.2d at 512-13 (emphasis added) (citations omitted).

Respondent urges his trial counsel was ineffective for failing to argue that the language in Hendricks, which we have italicized, requires proof of a complete lack of volitional control before an alleged sexual predator can be involuntarily confined. We cannot agree with that contention.

The essential conclusion to be derived from Hendricks is that a state’s sexually violent predator statute does not violate substantive due process if it requires proof of a “mental abnormality” that results in an inability to control sexually dangerous behavior. Iowa Code section 229A.2(4) requires such proof as did the Kansas statute upheld in Hendricks. But, we do not read section 229A.2(4) as requiring that the necessary mental abnormality involved a total lack of volitional control. Nor do we interpret the language from Hendricks, upon which respondent relies, as requiring that such an extreme lack of volition be shown to exist in order for a confinement to satisfy substantive due process.

Our rejection of defendant’s contention concerning the volitional requirement of section 229A.2(4) finds support in In re Linehan, 594 N.W.2d 867 (Minn.), cert. denied, 528 U.S. 1049, 120 S.Ct. 587, 145 L.Ed.2d 488 (1999). In that case, the court found that Hendricks requires a showing of a degree of volitional impairment that results in a lack of control over one’s own dangerousness, but does not require a showing of á complete lack of volitional control. Linehan, 594 N.W.2d at 875. Similarly, a Washington appellate court in In re Brooks, 94 Wash.App. 716, 973 P.2d 486 (1999), concluded that a defendant’s pedophilia was a “mental abnormality” under Washington’s sexually violent predator statute and rejected the defendant’s argument that Hendricks requires a showing of a complete lack of volitional control. Brooks, 973 P.2d at 492. We agree with these holdings.

II. Temporal Context of the Likelihood of Reoffending.

Respondent next argues chapter 229A requires a showing that he is more likely than not to reoffend within one year prior to an involuntary confinement, citing Iowa Code section 229A.8 as support for his contention. This section applies to individuals who have already been adjudged sexually violent predators. See Iowa Code § 229A.8. It requires an annual review and probable-cause hearing for all sexual predators to determine whether continued confinement is proper. See id.

We cannot accept defendant’s argument that the legislature, in providing for an annual review, required the State to prove that an alleged sexual predator is expected to reoffend within a period of one year. Iowa Code section 229A.2 requires the State to prove that respondent is “more likely than not [to] engage in acts of a sexually violent nature,” but does not include a time frame as to when the acts should be expected to occur. Iowa Code § 229A.2(3), (9) (Supp.1999).

As the State urges, the legislature has recognized that “the treatment needs of [sexually violent predators] are very long-term.” Iowa Code § 229A.1. Hence, we are convinced that the legislature did not intend to impose a burden upon the State to prove that alleged sexual predators are expected to reoffend within a specific time period, particularly a relatively short, one-year time period.

III. Other Issues.

As a final matter, we conclude that respondent’s arguments that chapter 229A violates due process, double jeopardy and ex post facto protections have no merit. This court previously rejected the argument that chapter 229A violates due process because it does not provide a less restrictive alternative in In re Detention of Garren, 620 N.W.2d 275, 284-85 (Iowa 2000). Similarly, this court held that Iowa Code chapter 229A is a civil statute that is not criminal in nature. Garren, 620 N.W.2d at 283. As such, double jeopardy and ex post facto protections do not apply to chapter 229A. Id. at 283-84. The court’s position on these issues was recently reaffirmed in In re Detention of Williams, 628 N.W.2d 447 (Iowa 2001).

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

      . The language of the Kansas statute was virtually identical with that contained in section 229A.2(4). The Iowa statute provides:

        "Mental abnormality ” means a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others.
      The Kansas statute reads as follows:

        "Mental abnormality ” means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.
      Kan. Stat. Ann. § 59-29a02(b) (1994).


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Jeremiah Lynn WALSHIRE, Appellant.
    No. 00-1298.
    Supreme Court of Iowa.
    Oct. 10, 2001.
    Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Denver D. Dillard, County Attorney, and William Croghan, Assistant County Attorney, for appellee.
   LARSON, Justice.

Jeremiah Walshire was convicted of driving under suspension, and he appealed, claiming error in the court’s denial of his motion to suppress evidence. We affirm.

I. Facts and Prior Proceedings.

The Marion Police Department received an anonymous telephone call about a vehicle with a suspected drunk driver. The call was apparently made on a cellular phone because the caller was following the subject car. The arresting officer testified at the hearing on the defendant’s motion to suppress, outlining the sparse facts surrounding his stop of Walshire’s vehicle:

Q. Okay. What about Mr. Walshire first brought him to your attention? A. We had — dispatch reported to me over the radio that a cell phone caller was behind a vehicle on Highway 13 they thought was drunk.
Q. And did they — were you told by dispatch any particulars about the vehicle? A. License plate, make and model of the vehicle.
Q. Okay. Were you told why this vehicle was suspected of driving drunk? A. I believe it was the caller stated they were driving in the median.

The officer testified that dispatch reported the caller would not give a name.

The arresting officer located the car and stopped it, solely on the basis of the call; he did not personally observe any behavior that would generate reasonable suspicion for a traffic stop. The defendant was not arrested for drunk driving, but he was charged with driving under suspension in violation of Iowa Code section 321J.21 (1999).

The defendant moved to suppress all evidence obtained as a result of the traffic stop on the ground the officer did not have a reasonable, articulable suspicion to make an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the information provided by the anonymous caller was not sufficiently reliable and was not corroborated by independent observations of the officer. The district court overruled Walshire’s motion to suppress, relying on State v. Markus, 478 N.W.2d 405 (Iowa Ct.App. 1991). On a stipulated record, the court found the defendant guilty of driving under suspension.

II. Standard of Review.

Appellate review of claimed violations of constitutional rights under the Fourth Amendment is de novo in light of the totality of the circumstances. See, e.g., State v. Ortiz, 618 N.W.2d 556, 558-59 (Iowa 2000).

III. The Merits.

To justify a Terry stop, an officer must have specific and articulable cause to reasonably believe criminal activity may be afoot. State v. Heminover, 619 N.W.2d 353, 357-58 (Iowa 2000). This quantum of evidence necessary to justify a Terry stop is often referred to as “reasonable suspicion.” On appeal the defendant occasionally discusses principles of “probable cause” rather than “reasonable suspicion,” as involved in this case. There is, of course, a substantial difference.

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990).

In State v. Markus, the case relied on by the district court, the police received an anonymous tip from a motorist using a cellular phone to report he was following a pickup that “was all over the roadway.” 478 N.W.2d at 407. The caller, as in the present case, reported the description of the vehicle, its license number, location, and direction of travel. The officers found the vehicle but made no independent observations as to how it was being operated. They stopped the vehicle and, believing the driver was intoxicated, arrested Mm for operating while intoxicated. The district court suppressed the evidence from the stop on the ground the officers had made no observations as to the manner of the vehicle’s operation, and the anonymous call alone was insufficient to create reasonable suspicion. Id. The court of appeals reversed, holding the totality of the circumstances provided reasonable suspicion for the stop, relying on Alabama v. White. Markus, 478 N.W.2d at 408.

In White an anonymous caller said Vanessa White would leave a certain apartment at a certain time in a brown Plymouth station wagon with a broken right taillight, that she would go to a certain motel, and that she would be possessing cocaine. Officers were able to corroborate all of the information, aside from the cocaine possession, through personal observation. The Supreme Court held this was sufficient to create reasonable suspicion, based largely on the fact that the anonymous caller’s information proved to be an accurate prediction of what the defendant would do, thus suggesting the caller had inside information and bolstering the caller’s credibility. White, 496 U.S. at 332, 110 S.Ct. at 2417, 110 L.Ed.2d at 310.

The defendant in the present case appears to argue, although it is not clear, that White is distinguishable from this case because here predictive information such as in White is lacking. He implies that Markus, which relied on White, was decided in error. According to him, the recent Supreme Court case of Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), controls this case and overrules Markus because J.L. held that an anonymous call, absent other indicia of reliability, cannot provide reasonable suspicion for a Terry stop. J.L., 529 U.S. at 270-71, 120 S.Ct. at 1378-79, 146 L.Ed.2d at 260.

In the present case, if there had been some indication of reliability based on the caller’s prediction of the defendant’s actions, as in White, or if the officers had confirmed for themselves that the driver was driving erratically, there would be a stronger case for reasonable suspicion. Nevertheless, we do not agree that reasonable suspicion necessarily requires an accurate prediction of future events or independent observations by the officer of inculpatory conduct.

In J.L. the Supreme Court held that, absent other indicia of reliability, an anonymous telephone call reporting that a young black male, wearing a plaid shirt and standing at a particular bus stop, was carrying a gun did not constitute the reasonable suspicion necessary to justify a Terry stop. The Court noted that the reputation of an anonymous informant cannot be assessed under those circumstances, and such an informant cannot be held responsible if the allegations turn out to be false. J.L., 529 U.S. at 270, 120 S.Ct. at 1378, 146 L.Ed.2d at 260. The Court noted “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity,” and in particular, such a tip would often not show “that the tipster has knowledge of concealed criminal activity.” Id. at 270, 272, 120 S.Ct. at 1378, 1379, 146 L.Ed.2d at 260, 261 (emphasis added). It said, “The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Id. at 272, 120 S.Ct. at 1379, 146 L.Ed.2d at 261.

This case is different from J.L. in several respects, one of which is particularly important: the information provided here did not concern concealed criminal activity, but rather illegality open to public observation. The tip here demonstrated the tipster’s basis of knowledge: the caller observed the defendant driving in an erratic manner. In fact, in a very similar case of an anonymous cell phone report of a drunken driver, decided after and in light of J.L., it was noted:

The offense alleged here did not involve a concealed crime — a possessory offense. What was described in the police dispatch to the arresting officer was a crime in progress, carried out in public, identifiable and observable by anyone in sight of its commission. Unlike the tip alleged in White — that White was carrying narcotics — or in [Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ] — that the defendant was carrying narcotics and a gun — here a total stranger could have observed defendant’s driving abilities. No intimate or confidential relationship was required to support the accuracy of the observation. The caller simply reported a contemporaneous observation of criminal activity taking place in his line of sight.

State v. Boyea, 765 A.2d 862, 875 (Vt.2000) (Skoglund, J., concurring), cert. denied, - U.S. -, 121 S.Ct. 2524, 150 L.Ed.2d 696 (2001). Likewise, in Markus our court of appeals stated “[i]ndependent corroboration of the inculpatory details of a defendant’s tip is not mandatory.” 478 N.W.2d at 408. When the officers found the informant to be accurate concerning the vehicle’s description and location, they had reason to believe the informant was also accurate as to the alleged criminal activity. Id.‘Because an informant is shown to be right about some things, he is probably also right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 244, 103 S.Ct. 2317, 2335, 76 L.Ed.2d 527, 552 (1983)); see also State v. Melanson, 140 N.H. 199, 665 A.2d 338, 340 (1995) (although anonymous caller provided “innocent” details, they were sufficient to support a conclusion the caller had personally observed the vehicle and helped demonstrate the caller’s reliability) (citing State v. Tucker, 19 Kan.App.2d 920, 878 P.2d 855, 862 (1994)). Although the police in the present case did not verify any inculpatory conduct by the defendant, they verified the caller’s description of the defendant’s vehicle, its license number, and its general location.

State v. Williams, 241 Wis.2d 631, 623 N.W.2d 106 (2001), cert. denied, — U.S. -, 122 S.Ct. 343, — L.Ed.2d -, 2001 WL 687428 (2001) is another case involving anonymous telephone calls, decided after J.L., and relying on the same reasoning. The court in Williams said:

In contrast [to J.L.], here, the anonymous tipster explains exactly how she knows about the criminal activity she is reporting: she is observing it. She says, “there’s some activity that’s going in ... going around in the back alley of my house.... They’re selling drugs,” and “they [are] giving customers, you know, drugs.” She then steps away from the phone momentarily to obtain a description of the vehicle. Quite simply, in contrast to the tipster in Florida v. J.L., the tipster here has made plain that she is an eyewitness.

Williams, 623 N.W.2d at 114 (first bracket added).

The Wisconsin court also gave weight to the fact the caller was a citizen informant, stating

[w]e have recognized the importance of citizen informants and, accordingly, apply a relaxed test of reliability, that “shifts from a question of personal reliability to ‘observational’ reliability.” In particular, we view citizens who purport to have witnessed a crime as reliable, and allow the police to act accordingly, even though other indicia of reliability have not yet been established.

Id. at 115 (citations omitted).

In this case the anonymous call came from a citizen informant, defined as one who is a witness to or a victim of a crime. Bousman v. Iowa Dist. Ct., 630 N.W.2d 789, 800 (Iowa 2000). We have recognized a rebuttable presumption that “information imparted by a citizen informant is generally reliable.” State v. Niehaus, 452 N.W.2d 184, 189 (Iowa 1990).

In Bousman we concluded an anonymous tip did not create reasonable grounds to support an order for nontesti-monial identification because the tip did not disclose “the means by which the information was obtained,” and because it did not establish that the informant was a private citizen. 630 N.W.2d at 800 (quoting Iowa Code § 810.5(4)). In the present case the call disclosed the means by which the information was obtained, ie., observation of the crime in progress, and thus made clear the caller was a private citizen. Bousman must therefore be distinguished.

The majority in the Boyea case focused on different grounds in distinguishing the J.L. case.

The Supreme Court in [J.L.] also noted the relative lack of urgency confronting the investigating officers. While acknowledging that guns are dangerous, the Court analogized the situation to one involving an anonymous tip concerning possession of narcotics. In either case the contraband could pose a potential public risk, but in neither is the danger particularly imminent. Thus the Court rejected a rule that would have dispensed with the requirement of reliability “whenever and however” the information involved a gun. J.L., 529 U.S. at 274, 120 S.Ct. at 1380. At the same time, however, the Court carefully limited its holding to the facts, declining to “speculate” about situations involving other types of dangers, such as a report of a person carrying a bomb. Id.
In contrast to the report of an individual in possession of a gun, an anonymous report of an erratic or drunk driver on the highway presents a qualitatively different level of danger, and concomitantly greater urgency for prompt action. In the case of a concealed gun, the possession itself might be legal, and the police could, in any event, surreptitiously observe the individual for a reasonable period of time without running the risk of death or injury with every passing moment. An officer in pursuit of a reportedly drunk driver on a freeway does not enjoy such a luxury. Indeed, a drunk driver is not at all unlike a “bomb, ” and a mobile one at that.

Boyea, 765 A.2d at 867 (third and fourth emphasis added); accord State v. Rutzinski, 241 Wis.2d 729, 623 N.W.2d 516, 526 (2001). The Boyea concurrence agreed that the risk of an illegal drug or a concealed weapon going undetected was far different from the risk posed by “a drunk driver maneuvering a thousand pounds of steel, glass and chrome down a public road.” Boyea, 765 A.2d at 875 (Skoglund, J., concurring). But see Stewart v. State, 22 S.W.3d 646, 649 (Tex.App.2000) (noting that J.L. only acknowledged a bombing situation might be different and did not announce such a rule).

The majority in Boyea further distinguished J.L. by observing that a traffic stop is less intrusive than the pat down considered in the J.L. case. Boyea, 765 A.2d at 868 (“The police intervention here consisted initially of a brief motor-vehicle stop and questioning, not a hands-on violation of the person. Thus, the liberty interest at stake in this case did not rise to the level which confronted the Court in J.L.”). The Boyea concurrence noted that the United States Supreme Court, while analyzing the constitutionality of sobriety checkpoints, weighed the intrusion on individual privacy interests against the government interest in preventing drunk driving.

The Court concluded that the balance favored allowing sobriety checkpoint stops, as the “magnitude of the drunken driving problem” was beyond serious dispute, and the “weight bearing on the other scale — the measure of the intrusion on motorists stopped briefly, at sobriety checkpoints — is slight.”

Boyea, 765 A.2d at 875 (Skoglund, J., concurring) (quoting Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2485-86, 110 L.Ed.2d 412, 420-21 (1990)).

We believe the following factors distinguish this case from J.L.:

(1) In this case the informant revealed the basis for his knowledge — he was observing a crime in progress, open to public view; (2) in the present case, a serious public hazard allegedly existed that, in the view of the Supreme Court, might call for a relaxed threshold of reliability; and (3) the intrusion on privacy interests is slight, less than in a pat-down situation.

For the reasons stated, we adhere to the ruling of Markus and affirm the denial of the motion to suppress. This disposition makes it unnecessary to address the State’s alternative argument based on the “community caretaking” exception to the warrant requirement. See State v. Moore, 609 N.W.2d 502, 504 (Iowa 2000).

AFFIRMED.

      . Williams has an. interesting procedural record. Initially, the trial court had overruled a motion to suppress the evidence obtained following the anonymous tip. The Wisconsin Court of Appeals reversed. 214 Wis.2d 412, 570 N.W.2d 892 (1997). On review by the Wisconsin Supreme Court, the court of appeals opinion was reversed. 225 Wis.2d 159, 591 N.W.2d 823 (1999). The United States Supreme Court then granted certiorari. The Supreme Court vacated the Wisconsin Supreme Court opinion, without review of the case, and remanded it for a new opinion in view of J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The Wisconsin Supreme Court examined the case for a second time and again held that the evidence was admissible. Williams, 623 N.W.2d at 108.