Fargo and North Dakota is getting some less than flattering national media attention. Just last week a Zamboni driver at a girls high school hockey game was driving erratically resulting in a call to the police and the arrest of the driver for driving under the influence in North Dakota.

The story has been picked up by the notorious sports website Deadspin. Deadspin reporter Kevin Draper wrote “Erratic” North Dakota Zamboni Driver Arrested for Suspected DUI.” Or if you like your news from more “respected” sources Marissa Payne wrote in her Washington Post blog “Fargo Man Arrested for Allegedly Drunk-driving a Zamboni at a
High School Hockey Game

I do not advocate driving anything while drunk, especially around children. However, I did find this situation interesting from a strictly legal point of view: Are you violating the law by driving a Zamboni around a hockey rink while intoxicated? As a side note even if it is not against the law to drunkenly drive a Zamboni around children there may be other laws that were broken and may apply to this clearly unacceptable conduct.

In my more than 30 years of practicing law in North Dakota I have been on both sided of drunk driving issues. I have represented clients charged with DUI, I have presided as a hearing Officer for the Department of Transportation in administrative hearings to suspend driver’s licenses for driving intoxicated and I have prosecuted drunk drivers as the chief City of Fargo Prosecutor.

Generally when we think of drunk drivers we think of a car swerving down the highway.

But the North Dakota statute that makes it a crime to drive while intoxicated, N.D.C.C. § 39-08-01 has been interpreted by the North Dakota Supreme Court as applying to “private fields” adjacent to public road and to private parking lots accessible from public roads.

While the express language of N.D.C.C. §39-08-01 expressly prohibits intoxicated driving of a vehicle “upon a highway or upon public or private areas to which the public has a right of access for vehicular use” the Supreme Court has also looked to N.D.C.C. §39-10-01 to incorporate the term “elsewhere” as an area where intoxicated driving is illegal.

Other issues to be considered is whether a Zamboni is a vehicle. Remember we are not talking in the generic everyday sense of the word but are confined to the clear definitions contained in the statutes so that everyone knows when they are or are not violating the law. Again from a practical sense I think we would all agree that no one thinks driving a Zamboni while intoxicated during a high school hockey game would be considered appropriate conduct.

Motor vehicles are defined at N.D.C.C. § 39-01-01 as every self-propelled vehicle. But bicycles are defined as vehicles by N.D.C.C. § 39-07-01. But do not forget the section of N.D.C.C. § 39-01-01 that defines vehicles as “every device upon which a person may be transported upon a public highway, except devices moved by human power.”Let’s review. A Zamboni most likely is a motor vehicle. But I would venture to say that it is not used to transport a person on a public highway so it may not be a vehicle. Also, the hockey rink is not likely an area where the public has a right of access for vehicular use. At least I hope not.

We all agree that driving a Zamboni on a hockey rink at a high school hockey game is unacceptable. Is it a crime? My guess is that we will not find out the answer to that question because the case can be decided without getting into the esoteric question involving public vehicle access to hockey rinks. Think about it. After the Zamboni cleans the ice what does it do? Most often, and in every hockey rink I have been at in Fargo, it opens the garage door and drives out on the parking lot to dump the ice shavings. Yes, the parking lot, an area to which the public has a right of access and where intoxicated diving is clearly prohibited by N.D.C.C. § 39-08-01.