dissenting.
I respectfully dissent from the portion of the Court’s opinion holding that I.C. § 18-8304(1) is not unconstitutionally vague. I am fundamentally perplexed as to how an intelligent person can determine when and where to register. The reason for my perplexity is revealed by the following colloquy I had with the attorney for the state during the oral argument in this case:
JUSTICE JOHNSON If you travel from north to south Idaho you better register in eveiy county?
COUNSEL No, Justice Johnson, I don’t believe that it goes to that extent under what common understanding of residency.
JUSTICE JOHNSON I am just spinning off of what you have told me, so I am trying to understand the meaning as you see it.
COUNSEL I understand.
*266JUSTICE JOHNSON If I travel from south to north Idaho which counties do I need to register? If I am a convicted sex offender?
COUNSEL Well, I think there is some interplay between the time ...
JUSTICE JOHNSON Which counties do I need to register in?
COUNSEL You would have to register in those counties where you reside or temporarily domicile.
JUSTICE JOHNSON That only puts me on a merry-go-round. What does that mean? Which counties do I have to register in? Under your very clear understanding of what the statute means?
COUNSEL Justice Johnson, I would say that you need to register in all of the counties.
JUSTICE JOHNSON So as I pass through Nez Perce County or the short time I am there I had better go to the sheriffs office and register?
COUNSEL I think there is a difference between passing through it and being temporarily domiciled.
JUSTICE JOHNSON I said I was traveling from north to south Idaho and you told me that I had better register in every county that I pass through didn’t you?
COUNSEL I think though, that there is a difference between driving through it and passing through it.
JUSTICE JOHNSON Well, I am just spinning off of what you have told me the clear understanding is of these very clear terms.
COUNSEL And I understand that, Justice Johnson.
JUSTICE JOHNSON And that very clear understanding means if I stop for lunch in Lewiston, I had better register?
COUNSEL I think that you are just going through, Justice Johnson. I don’t think that you kept ...
JUSTICE JOHNSON And if I stay the afternoon and go to the city park and eat my sandwich, had I better register?
COUNSEL I don’t believe that you would need to.
JUSTICE JOHNSON And if I take a nap on the park bench, had I better register?
COUNSEL No, Justice Johnson.
JUSTICE JOHNSON If I stay the night, I had better register though?
COUNSEL It would be prudent.
JUSTICE JOHNSON So if I sleep there, stay a full twenty-four hour period, I am residing or temporarily domiciled in Nez Perce County?
COUNSEL I would believe so, Justice Johnson.
JUSTICE JOHNSON So it requires at least one night’s stay? Is that it?
COUNSEL Well, I think also that you can look at the intent of the individual. But, I don’t know that I am relying upon that. And what does the individual ...
JUSTICE JOHNSON Well, I am just working off of your statement that this is very clear what these terms mean, so I am trying to understand their clear meaning.
COUNSEL I understand, Justice Johnson.
JUSTICE JOHNSON And so, if I stay the night in Lewiston I had better register in Nez Perce County. But, if I then pass through the other counties on the way to Kootenai County, then I am just passing through and I don’t need to register? But if I get to Kootenai County and I again stay the night, I had better register?
COUNSEL Yes, Justice Johnson.
JUSTICE JOHNSON And if I leave the next day and go back to my home in Idaho City, I will have registered in Nez Perce County and Kootenai County because I stayed there the night?
COUNSEL Yes, Justice Johnson. And I think the policy behind that is to track sex offenders.
JUSTICE JOHNSON Is there any notification to those who are given the required statutory notice that that is what the statute means? That each time they stay in a county for one night that they had better register?
COUNSEL Within the confines of the notice requirement there is not, Justice Johnson, as I under ...
*267JUSTICE JOHNSON Is it your statement that the state of Idaho is prosecuting all individuals who stay one night in a county and don’t register?
COUNSEL I don’t know that they are, Justice Johnson.
JUSTICE JOHNSON But you think they should?
COUNSEL Not necessarily. I think that
JUSTICE JOHNSON Why shouldn’t they, if that is residence?
COUNSEL I think that there is a great deal of prosecutorial and for that matter law enforcement discretion that can go into any charging decision. And I think that should ... and prosecutors can take that into consideration. But when you look at the extremes, as an example, a backpacker who is in the wilderness area of the Sawtooth mountains, that individual, I believe could be prosecuted. Would a prosecutor prosecute that individual? I would seriously doubt it. But I would submit that it is possible under the definitions that we have ...
JUSTICE JOHNSON If you are backpacking in the area of Bull Trout Lake where you cross from Boise County to Custer County three or four times in the course of a particular trail, you better run to Idaho City and then you better run to Challis and register?
COUNSEL That’s going to be a difficult area, Justice Johnson. And there are going to be some areas that will have to be looked at in that particular area. Ah, but again, if we focus upon the policy which is a crafted right within the statute — that of protection of the community — that of assisting law enforcement— and implicitly tracking sex offenders so that we know where they are, that is the reason for the five-day time period. I know that Idaho’s statute ...
JUSTICE JOHNSON And you say that is the reason for the five-day time period. That’s what I originally started out with, because the implication you gave me was, you had better register there if your are there five days. And now you tell me it doesn’t take five days, it may only take one night. So, now you are back to the five days. The five days is the period within which you have to register, not the time you must be there.
COUNSEL That is correct, Justice Johnson.
JUSTICE JOHNSON So the five days really has nothing to do with residence or temporary domicile does it?
COUNSEL No. No. It really doesn’t. But what I was getting at is that that time five-day time period that you have to register is a very short time period when you compare it to other statutes across the nation. Most statutes give you thirty days, although there is one statute as I recall, I don’t recall which state, that it was within forty-two hours of coming in. Now, it is simply a policy call on the part of the legislature to have this type of statute and rather encompassing sex offenders and bringing them within the confines by not defining specifically residency and temporary domicile. If they had wanted something more concrete, we wouldn’t have had the word “temporary” there.
JUSTICE JOHNSON So, if I understand it correctly, if I travel from south Idaho to north Idaho, and I stay the night in Lewiston and I stay the night in Coeur d’Alene and I fly back to Boise, I’d still have within three days in which to register in both Lewiston and Coeur d’Alene. Is that correct? And I could come back and do it?
COUNSEL The way the statute is written, yes, Justice Johnson, you would have those five days within which to register. Yes. Absolutely.
JUSTICE JOHNSON And you think that would accomplish the policy the legislature had in the statutory scheme?
COUNSEL I think it would go beyond the policy that they were looking at. Because part of the policy I do believe includes that five-day period. They don’t want sex offenders to be out in a particular area for a very long period of time. And I realize that that gets into — Does domicile require the five days? I would submit that it doesn’t. But they give you five days within which to register. I don’t believe that it is an extreme arbitrary statute that requires *268someone to register where they are temporarily domiciled, or where they reside. And when you look at the context of the other statutes that have defined “residency,” particularly Fish and Game statutes, motor vehicle laws — those are statutes where you are requesting something. And you are required to be somewhere within a period of time to qualify for the residency requirement. That is not what we have here. We do not have to be here in Kootenai County for five days before we are subject to the Sex Offender Registration Act. It is, as we have discussed Justice Johnson, a period of time in which you have to register. They are totally different. Which gets us right to the jury instructions on the issue of “domiciled” and “residency.” First off, I would submit that this Court should not even address that issue because the issue is — the instructions that were provided were very ambiguous and they are not ah applicable to the situation that we have here. The Fish & Game statutes regarding “residency,” even Black’s Law Dictionaries, Black’s Law, the definition of residency. I would submit it is as counsel has alluded to, it is confusing, it would be very confusing to a jury to have those definitions placed in front of them. And those definitions, particularly the instructions that were submitted, did not include the word “temporary,” which modifies “domiciled,” so they were not correct statements of law. They should have gone ...
JUSTICE JOHNSON What is “temporary domiciled” as you understand it?
COUNSEL I am sorry, Justice Johnson.
JUSTICE JOHNSON What is “temporary domiciled” as you understand it?
COUNSEL Justice Johnson, “temporary domiciled” as I understand it, particularly with regards to this statute, is contrary to what counsel has alluded to, is in fact, the presence of being in a county-
JUSTICE JOHNSON How is that different from “residing”?
COUNSEL “Residing” isn’t modified by temporary.
JUSTICE JOHNSON I understand that. But how is it different than “residing”?
COUNSEL “Residing” to me, indicates that you have some intent to stay within the county, for a period of time.
JUSTICE JOHNSON If your are “temporarily domiciled” it means that you don’t have an intent to stay in the county and that’s the reason that I would have to register in both Nez Perce County and Kootenai County, because I didn’t have an intent to stay there, but I was temporarily domiciled there?
COUNSEL It means that you were temporarily there. That you were there for a very short period of time, whatever that duration is.
JUSTICE JOHNSON But you said that I had to stay at least one night?
COUNSEL I don’t know, Justice Johnson, that the statute specifically calls for it. That is rather arbitrary on my part, quite frankly, to say that you have to stay.
JUSTICE JOHNSON But I am working off your clear understanding of what these clear terms mean.
COUNSEL I understand that, Justice Johnson, ah but I think the average individual, if I am even visiting in Kootenai County for a day, then I am temporarily present there.
JUSTICE JOHNSON Then you had better register, if you are a sex offender.
COUNSEL Absolutely. Absolutely.
JUSTICE JOHNSON The truth of the matter is that to be very careful any place you go, you better register, just so you don’t slip up?
COUNSEL I believe that is true, Justice Johnson. It is a very ...
JUSTICE JOHNSON The best thing to do, is that if you intend to live the rest of your life in Idaho, the first thing you better do is the register in all forty-four counties?
COUNSEL That would be a prudent thing to do as a sex offender.
*269JUSTICE JOHNSON They won’t know where you are because you would be registered throughout the state. Because the state told you that is what you should do. [The attorney for the state] said that at the podium in this case.
COUNSEL Justice Johnson, it would be a prudent thing to do, but it is not a practical thing to do because you can’t give the sheriff notice of where you are at at that time.
JUSTICE JOHNSON Well, but that’s that’s the point of my question. If I come back to Idaho City after having spent the night in Lewiston and Coeur d’Alene, and I register within the next three days, I tell them I am living in Idaho City, but that I spent the night in Lewiston, I spent the night in Coeur d’Alene, so I am registered?
COUNSEL In that context, yes, Justice Johnson, because you have given the sheriff the notification of where you were at or are at at that particular time. But I don’t believe that you can go, as we have discussed, to the forty-four counties and say, I’m going to be living down here in Pocatello unless you can tell the sheriff in Kootenai County, that at a particular time you’re going to be residing here, in Kootenai County. It is where you are at at the particular time. Where you are residing, where your are temporarily domiciled.
JUSTICE JOHNSON Is that where you are at at the time you register? That seems to be the meaning that you give to it. Because if I returned to Idaho City, you say that when I register that I should tell the sheriff in Nez Perce County and Kootenai County that I am residing in Boise County?
COUNSEL No, Justice Johnson, the statute requires that you give the sheriff notification and that sheriff is the sheriff in which you are residing or are temporarily domiciled.
JUSTICE JOHNSON So then I don’t have to register in Nez Perce or Kootenai County once I am back in Idaho City?
COUNSEL But if you were residing or temporarily domiciled during that five-day period in Kootenai County, you would have to.
JUSTICE JOHNSON Well, but I had the five days and by the end of the five days I am back in Idaho City and you say I can’t tell the sheriff in Nez Perce County I am residing in Idaho City, because I had be residing in Nez Perce County.
COUNSEL If that is what I said, Justice Johnson, I misspoke. What I was saying is that you would tell the sheriff in Kootenai County that on such and such a day I was residing or temporarily domiciled in Kootenai County.
JUSTICE JOHNSON Why can’t I give that same kind of notice for all forty-four counties? That I passed through all forty-four and took a tour of the state and I am back in Idaho City and I want to register in all forty-four counties? Then I will have fulfilled the law?
COUNSEL If it were within the five-day period. For example, if you could make all forty-four counties without ...
JUSTICE JOHNSON I’ve done it.
COUNSEL Okay, then yes, that would work.