concurring specially.
I agree that it was not error to allege in the complaint that Edinger had been previously convicted of having driven while under the influence. The trial court gave a proper cautionary instruction as to the effect of the evidence of the previous conviction and I also agree, therefore, that the judgment should be affirmed.
Insofar as the majority opinion may imply that it is necessarily error not to include such an allegation in the information or complaint, I do not agree. Although Section 39-08-01(2) uses the term “judicial notice,” it obviously requires proof of the previous conviction, either through the records of the highway department or by other evidence. If a defendant has knowledge that he is charged with the greater offense, as for example being charged with a Class A rather than a Class B misdemeanor, and if the previous conviction is proved as provided by the statute, I do not concede that it would be error if the previous conviction were not specifically alleged in the information or complaint. Section 39-08-01(2) obviously implies that such an allegation is not necessary. That section is concerned with matters of pleading rather than matters of proof. Nor do I believe this court’s decision in State v. Ruble, 77 N.D. 79, 40 N.W.2d 794 (1950), requires such an allegation. The Ruble court suggested that some statutory changes dispensing with the necessity of pleading the fact of prior conviction and providing for the determination thereof by the court after conviction of the charge on trial would be justified. I believe our Legislature has done that by permitting the previous conviction to be specifically alleged or, if the defendant is charged with a Class A misdemeanor, the previous conviction may be proved even though it is not specifically alleged. I leave for another day (and another specific factual situation) the issue of whether or not such a procedure is adequate as to a defendant who has no notice that he is being charged with a Class A misdemeanor.