concurring and dissenting.
I agree with the majority that we cannot consider the constitutionality of this reckless driving statute, NDCC 39-08-03(2). Still, I reckon the appellant raised this new constitutional question on appeal for another purpose — to focus our attention on the separate elements of the subsection 2 offense.
This offense has two elements: “Without due caution and circumspection,” or negligence, and “at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another,” or reckless conduct. NDCC 39-08-03(2). Because more than negligence is required and the evidence here only proves negligence, I respectfully dissent.
While the trial court gave an added instruction defining “recklessly,” State v. Kreiger, 138 N.W.2d 597, 600 (N.D.1965), clarifies that “a driver need not be proved guilty under both subsections.” Yet, I see small difference between the reckless conduct element in subsection 1, “disregard of the ... safety of others,” and the recklessness in subsection 2, “at a speed or in a manner ... likely to endanger any person.” I believe the endangerment element defines a degree of culpability significantly greater than the ordinary negligence element, “without due caution.” After all, a basic rule of statutory interpretation is that a statute be construed to give meaning to every word, phrase, and clause. See NDCC 1-02-38(2). For these reasons, I cannot accept the prosecution’s argument here that subsection 2 “es*101sentially contemplates a category of reckless driving that does not envision the consciously culpable.” Because the prosecution ignored the culpability requirement in subsection 2, it did not prove an offense in this case.
The majority opinion concludes the evidence was sufficient to convict Syring because “a driver who can see a vehicle nearly a mile away and who has 51 seconds to react should do just that.” I agree that conduct proves negligence, but not the recklessness of endangerment. That evidence could con'vict Syring of driving without the care required, or negligently, under NDCC 39-09-01. But a violation of that section is a minor infraction, not a class B misdemeanor like a charge under NDCC 39-08-03, or a class A misdemeanor when aggravated by an actual injury, like the charge against Syring here.
In my opinion, there was no evidence of endangerment, that is, “in a manner ... likely to endanger.” Ordinary negligence does not prove the “endangering” element of this reckless driving offense. It is well established that something more is mandated. See Annot., What amounts to reckless driving of motor vehicle within statute making such a criminal offense, 52 ALR2d 1337, 1341-42 (1957) (“as a general rule something more than mere negligence in the operation of an automobile is necessary to constitute the offense”); § 15 (“Endangering the public”), at p. 1359; and § 24 (“The mere occurrence of an accident does not give rise to an inference of reckless driving.”), at 1367. See also 7A AmJur2d Automobiles and Highway Traffic § 314 (1980) (“The general rule is that something more than mere negligence in the operation of a motor vehicle is necessary to constitute the offense of reckless driving, and a willful disregard of the consequences is required.”). In this record, there is no evidence that Syring was driving at a speed or in a manner likely to endanger others.
Syring was driving within the speed limit of sixty-five for an interstate, high-speed highway, in the right lane on a clear night on October 20, 1993, just after midnight. Less than a mile after coming over a hilltop, along a long, downhill curve to the left, Syring suddenly came upon a partially disabled car that was “trudging along” in the right-hand lane, not on the shoulder, at about 25 miles per hour. The ear was slow-moving because the driver had discovered three lug bolts on one wheel had broken off, and the car vibrated at normal speeds.
There are “[mjinimum speed limits”: “No person may drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.” NDCC 39-09-09(1). Coming upon an unexpectedly slow-moving vehicle at night, while proceeding at a legal speed and in the usual manner on a long curve on a high-speed highway, cannot be reckless driving.
Precedent supports this conclusion. See State v. Jacobsmeier, 229 Iowa 878, 294 N.W. 920, 921 (1940) (reversing where the evidence was insufficient for a conviction of reckless driving; “[bjecause of the turn the headlights did not shine upon these pedestrians for any appreciable time immediately before [the pedestrian victim] was struck, ...”). See also 7A AmJur2d Automobiles and Highway Traffic § 315 (1980), on “Endangering person or property,” (“If the element of the offense is endangering the life or limb of any person ⅛ the lawful use of the street or highway’, the statute is not violated by endangering one who at the time was unlawfully using the highway.”). Considering Syr-ing’s normal speed and manner for an interstate highway, and the unexpectedly slow-moving ear, I see no evidence of driving in a manner likely to endanger the public.
Because I believe the evidence here was insufficient to warrant a conviction, I would reverse the conviction.
LEVINE, J., joins.