Mississippi Advisory Opinions September 21, 1994: AGO 000011068 (September 21, 1994)

AGO 000011068.

Dear Mr. Moore:

Attorney General Mike Moore has received your request for an opinion and has assigned it to me for research and reply. Your letter asks:

QUERY ONE: Does Neshoba County have jurisdiction over a non-Indian who refuses to take a breath test as required by Section 63-11-1? Note that the statute uses the phrase "operate a motor vehicle upon the public highways, public roads and streets OF THIS STATE" (emphasis mine). The streets on the reservation are not owned by the State of Mississippi and were constructed and maintained now, by the tribal government exclusively.

QUERY TWO: Does Neshoba County have jurisdiction over a non-Indian who violates Section 63-11-30 of the Mississippi Code? Note that this statute uses the phrase "drive or otherwise operate a vehicle within this state." It is my understanding that for purposes of this law, the reservation is within the state. Choctaw Indians on the reservation are citizens of the State and entitled to vote in all local elections, etc.

In response to Question 1, it is noted that Section 63-11-5 of the Mississippi Code states that any person who operates a motor vehicle "upon the public highways, public roads and streets of this state shall be deemed to have given his consent subject to the provisions of this chapter to a chemical test or test of his breath for the purpose of determining alcoholic content of his blood." If a person fails to submit to such a chemical test of his breath then the result is simply that his drivers license will be suspended by the Department of Public Safety. It is not a criminal violation to refuse to submit to the chemical test of one's breath. See second paragraph of Section 63-11-5. The technical answer to your question is that it is the Department of Public Safety and not Neshoba County that has jurisdiction over persons who refuse to take a breath test. Of course, whether or not the Department of Public Safety may suspend the driver's license of a person who refuses to submit to a breath test when he has been arrested for DUI upon roads within the Choctaw Reservation depends on whether those road are considered to be "public highways, public roads and streets of this state." It is our opinion that roads within the Choctaw Indian Reservation do constitute public highways, public roads or streets of this state as those terms are used in 63-11-5 of the Mississippi Code, and that the implied consent statute, Section 63-11-5, is applicable to such roads.

In response to your second question, it is our opinion that the operation of a vehicle while under the influence of alcohol within the confines of the Choctaw Indian Reservation does constitute a violation of Section 63-11-30. In the United States Supreme Court decision of United States v. McBratney, 104 U.S. 621 (1882) the Court held that a state has jurisdiction over a crime committed in Indian Country by a non-Indian against a non- Indian for a crime which does not affect Indians. This decision has been cited and reaffirmed many times. See United States v. Wheeler, 435 U.S. 313 (1978); New York ex rel. Ray v. Martin, 326 U.S. 496 (1946) and the cases cited therein. Although the United States Supreme Court has not addressed the issue of whether non- Indians may be prosecuted for DUI while in Indian Country, state courts have. In State of Idaho v. Snyder, 807 P.2d (Id. 1991) the court held that a non-Indian could be prosecuted in state court for driving under the influence of alcohol within the boundary of an Indian Reservation, on roads that were not owned or maintained by the state but rather by the Indian tribe. In such "victimless" crimes the

policy of providing a federal forum where criminal prosecutions pit the interest of non-Indian offenders against Indian victims is not furthered where, as here, the connection to destruction of Indian property is only tangential to the crime charged. Under the circumstances, the State's interest in highway safety controls the issue.

Snyder, 807 P.2d at 57. See also, State of New Mexico v. Warner, 379 P.2d 66 (N.M. 1963) (non-Indian defendant properly prosecuted for DUI occurring within Indian Reservation); and State v. Glacier County, 851 P.2d 405 (Mont. 1993)(non-Indians were properly prosecuted in state court for misdemeanor gambling violations occurring within Indian Reservation). Based on these authorities it is our opinion that non-Indians committing DUI offenses or other "victimless" crimes [Note: the US Attorney General's Office has opined that "victimless" crimes that "fall exclusively within State competence" include "most traffic violations, and most routine cases of disorderly conduct, and most offenses against morals such as gambling . . ." 3 U.S. Op. O.L.C. 111(1979)] within an Indian Reservation should and can be prosecuted in state court. If such violations occur within the boundaries of Neshoba County they should be prosecuted in Neshoba County Circuit or Justice Court.

Very truly yours,

MIKE MOORE, ATTORNEY GENERAL

By: Mike Lanford Special Assistant Attorney General

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