concurring specially.
[¶ 15] Admittedly, this case deals with an issue apparently seldom confronted by the courts in this country — the disputed date of birth of an immigrant. Although there is some contrary authority, the majority relies on a single, rather recent decision of a federal trial court and a recent Minnesota Supreme Court opinion to resolve the issue by a pre-trial motion to dismiss with the issue to be decided by a judge’s finding by a preponderance of the evidence.
[¶ 16] I believe looking to the two recent non-North Dakota decisions is inappropriate because it is inconsistent with our longstanding North Dakota caselaw limiting the scope of a motion to dismiss to the sufficiency of the charging document on its face. See State v. Howe, 247 N.W.2d 647 (N.D.1976). But neither party raises the issue on appeal. Both argue preponderance of the evidence. Therefore, I would hold that the district court did not err in deciding the question on the basis of the standard argued by the parties. The majority’s statement of the standard for purposes of any future cases is non-controlling dicta. If a similar case arises in the future, the parties would be *414free to argue what I believe to be the correct standard.
[¶ 17] I would conclude that probable cause is the proper standard to establish age at the time of the alleged offenses for the purpose of the case proceeding to trial and that the motion to dismiss was not proper.
[¶ 18] This is the review of the grant of a motion to dismiss a criminal case. Curiously, the majority’s jurisdictional analysis is based on civil cases and fails to consider our clear criminal caselaw going back more than three decades that “a motion to dismiss is to test the sufficiency of the information or indictment. It is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered.” Howe, 247 N.W.2d at 652.
[¶ 19] The majority says, at ¶ 8, the same principle for waiver of a juvenile court’s jurisdiction generally applies to the initial determination of jurisdiction in district court. The standard of proof for waiver is well-established:
Under N.D.C.C. § 27-20-34(l)(b), a juvenile court shall transfer jurisdiction to the district court when the alleged delinquent act involves gross sexual imposition if the juvenile court determines there is probable cause to believe the juvenile committed the offense....
In re R.A., 2011 ND 119, ¶ 6, 799 N.W.2d 832.
[¶ 20] If, as the majority claims, the same principle for waiver applies to initial determinations of jurisdiction, then the standard of proof for jurisdiction is probable cause. Instead, the majority, at ¶ 8, undermines its own proposed principle, opting to follow certain cases which conclude the State has the burden of proving, by a preponderance of the evidence, the defendant’s age on the date of the offense.
[¶ 21] This Court has never explicitly articulated the standard of proof required to establish jurisdiction in a criminal case. A thorough examination of the standards of proof required to establish criminal jurisdiction in federal court, as well as other states, ultimately yields one of two possible approaches. The first approach allows an individual to raise infancy as a jurisdictional defect which, if proven by a preponderance of the evidence, will require a trial court to dismiss the case for lack of jurisdiction. This is the approach adopted by the majority. The other view is more consistent with our own caselaw, and is likewise more in line with the majority’s reasoning. This second view vests criminal subject matter jurisdiction in the trial court upon the filing of the criminal complaint and a finding of probable cause.
[¶ 22] In this case, the magistrate had previously issued an arrest warrant, which required a probable cause finding. See N.D.R.Crim.P. 4 (“If it appears from the complaint ... that there is probable cause to believe that a criminal offense has been committed by the defendant, the magistrate must issue an arrest warrant to an officer authorized by law to execute it.”). In addition, he waived his preliminary hearing and the opportunity to have probable cause reviewed. Therefore, probable cause that Arot committed the crimes of gross sexual imposition had already been established prior to his motion to dismiss, binding Arot over for trial in the district court. Arot nevertheless moved to dismiss in the district court, claiming he was not eighteen years old when the alleged crimes were committed. The law establishing probable cause as the standard of proof and invoking subject matter jurisdiction upon the filing of the complaint in criminal cases has been explicitly established in a number of jurisdictions. “[T]he first judge ... determined ... that probable cause *415existed for appellee’s arrest. Appellee became subject to the trial court’s jurisdiction upon the issuance of the arrest warrant.” State v. Ballone, 422 So.2d 900, 901 (Fla.Dist.Ct.App.1982). “The circuit court’s subject-matter jurisdiction attaches when the complaint is filed. The circuit court lacks criminal subject-matter jurisdiction only where the complaint does not charge an offense known to law. Once criminal subject-matter jurisdiction attaches, it continues until a final disposition of the case.” State v. Aniton, 183 Wis.2d 125, 129-30, 515 N.W.2d 302 (Wis.Ct.App.1994) (citations omitted). “The trial court lacked valid subject matter jurisdiction where a felony complaint was never filed and Petitioner was bound over for trial without probable cause, absent any filing of a complaint[.]” Edwards v. McQuiggin, 2:08-CV-303, 2011 WL 7440951 (W.D.Mich. July 8, 2011).
[¶ 23] Some cases go even further, specifically holding that criminal subject matter jurisdiction will last until trial once it has been established through probable cause:
Based upon this evidence the military judge made specific findings of fact: (1) that the security policeman at the gate had probable cause to believe that the accused had committed an offense under the Uniform Code of Military Justice; ... and established jurisdiction under the provisions of Article 2(1), Uniform Code of Military Justice; (4) that jurisdiction over the offense attached at the time of the apprehension and continued until trial....
U.S. v. Bailey, 11 M.J. 730, 734 (A.F.C.M.R.1981).
[¶ 24] The holdings of this Court are consistent with other states which establish the principle that a magistrate’s probable cause findings determine jurisdiction:
The court or judge is not, in such cases, to sit as a court of review, to determine the sufficiency of the evidence as respects the guilt or innocence of the accused, but to inquire whether the proceedings are without jurisdiction, or the determination of the magistrate unsupported by evidence. His judgment in the premises, upon the evidence, must stand, if there is evidence reasonably tending to support it.
State ex rel. Styles v. Baeverstad, 12 N.D. 527, 97 N.W. 548, 550 (1903) (quotation omitted). This case tells us that probable cause is enough to establish jurisdiction in the district court.
[¶ 25] Probable cause is more consistent with existing North Dakota caselaw than a preponderance of the evidence standard. Although the standard of proof for establishing criminal jurisdiction in the trial court has not been conclusively determined in this state, the standard of proof for similar scenarios is probable cause. See, e.g., Heick v. Erickson, 2001 ND 200, ¶ 8, 636 N.W.2d 913 (“The court applied the facts, as supported by the evidence . introduced at the preliminary hearing, and found there was probable cause to bind over Heick for trial.”); Hinkel v. Racek, 514 N.W.2d 382, 383 (N.D.1994) (“A magistrate exceeds his or her jurisdiction when the magistrate bases a finding of probable cause that a defendant committed the alleged offense on no evidence or on irrelevant evidence.”); In Interest of T.M., 512 N.W.2d 441, 443 (N.D.1994) (“‘[Reasonable grounds’ [is] the standard for waiver of jurisdiction and transfer of the offense from juvenile court. ‘Reasonable grounds’ is equivalent to ‘probable cause.’ ”). The majority states, in ¶ 8: “[T]he same principle [of waiver] generally applies to the initial determination of jurisdiction.”
[¶ 26] Infancy is an issue better raised at trial, where conflicting evidence is more *416properly developed, than in a motion to dismiss. “[T]he purpose of a motion to dismiss is to test the sufficiency of the information or indictment. It is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered.” Howe, 247 N.W.2d at 652. Requiring proof of age by a preponderance of the evidence is inconsistent with the principles of this Court and with the abundance of caselaw requiring only probable cause to establish jurisdiction for criminal trial.
[¶ 27] The criminal complaint filed in district court invoked criminal subject matter jurisdiction, and there was probable cause to bind Arot over for trial in the district court, but the parties did not argue this to the district court or here on appeal. I agree that the district court should be affirmed under the standard argued.
[¶ 28] DALE V. SANDSTROM