(dissenting).
I.
I respectfully dissent and join in the separate dissents of Justice Page and Justice Stringer. The majority departs from the path the court chose just two years ago in State v. Johnson, 598 N.W.2d 680, 684 (Minn.1999), to not examine the reasons behind a licensure decision in determining whether a licensure violation is criminal/prohibitory or civil/regulatory. We took that course in part because in State v. Stone, we made clear that the policies behind licensure laws were not substantially different or heightened from the general policy behind the driving laws. 572 N.W.2d 725, 780-81 (Minn.1997). Our decisions in Stone and Johnson compel me to conclude that the state does not have jurisdiction over the offense of driving after cancellation as inimical to public safety.
In Stone, we stated without qualification that the requirement that one possess a valid driver’s license is imposed by a civil/regulatory and not criminal/prohibitory statute. 572 N.W.2d at 781. In Johnson, we held that a charge of driving after revocation, there based on failure to produce proof of insurance, was a civil/regulatory offense and consequently not within the state’s jurisdiction to enforce on a reservation. 598 N.W.2d at 684. Moreover, we addressed in Johnson the question presented in this case, whether to look beyond the revocation or cancellation of a license to the underlying reason for the licensure action to determine whether the offense is civil/regulatory or criminal/prohibitory. We stated in Johnson:
A fundamental difference between the offense of driving after revocation and other traffic offenses is that driving af*90ter revocation is a subsequent violation committed only after a driver’s license has been revoked because of a prior offense. See Minn.Stat. § 171.24, subd. 2. Obviously the prior offense carries its own sanction based upon the severity of the conduct. As each offense is triggered by different and unrelated conduct, the issue might then arise whether fairness should dictate that the nature of the subsequent offense, for purposes of the Stone analysis, not be measured by the nature of the prior offense, because if it were the offender could be subject to being sanctioned twice for the prior offense. Further, it is significant here that in Stone we held that driving without a valid license does not raise policy concerns substantially different from the general policy of public safety and therefore the violation is civil/regulatory. We would hardly be consistent to now conclude that even though a tribal member is not required to have a driver’s license at all while driving on a tribal reservation, driving after revocation of a license should be an offense that rises to the level of a “heightened public policy” concern.
598 N.W.2d at 684 (emphasis added) (citing Stone, 572 N.W.2d at 730). The majority engages in the inconsistency we rejected so recently in Johnson by holding that driving after cancellation, based on the underlying offenses, is criminal/prohibitory.
The majority attempts to distance its holding from Johnson on the basis that the language used in Johnson was tentative. After the language that the majority now labels as tentative, however, we stated unequivocally that driving without a valid license does not raise policy concerns substantially different from the general policy behind the driving laws. Johnson, 598 N.W.2d at 684 (citing Stone, 572 N.W.2d at 730). The majority dismisses Johnson, but our consideration of the public policy behind licensure laws in Johnson follows directly from Stone, where we had previously held that policies behind the requirement of a valid license were not substantially different or heightened from the general policy behind the driving laws. Stone, 572 N.W.2d at 730-31. As such, we are bound by that precedent to hold that driving after cancellation is civil/regulatory.
Moreover, if inquiring into the basis for a cancellation is proper, can we not also consider that cancellation itself remains wholly administrative, suggesting regulation rather than prohibition? The majority notes that the Department of Public Safety rules provide only circumstances relating to alcohol or controlled substance violations as bases for cancellation as inimical to public safety. See Minn. R. 7503.1300. The commissioner promulgates these rules as part of the commissioner’s regulatory authority, however, and could conceivably include wholly regulatory offenses such as speeding (see Stone, 572 N.W.2d at 730) as a basis for cancellation of a driver’s license as inimical to public safety. The majority merely assumes that one whose license has been cancelled as inimical to public safety has a severe drug or alcohol problem posing a public safety risk, however, as demonstrated by the facts in this case, the offense of driving after cancellation may involve absolutely no actual threat to safety.1 State jurisdiction over the conduct of Indians on reser*91vations cannot rest on what is only speculation regarding those who drive after their license has been cancelled.
The majority also claims that the status of driving after cancellation as a gross misdemeanor strongly suggests heightened public policy concerns. The U.S. Supreme Court in Cabazon made clear, however, that the mere presence of a criminal penalty will not make a civil/regulatory law criminal/prohibitory. California v. Cabazon Band of Mission Indians, '480 U.S. 202, 211, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987).
The majority also finds support for its conclusion of heightened public policy concerns in use of the term “inimical” to describe the basis for the cancellation. Public policy behind the broad conduct of driving is the protection and safety of persons and property on the roadways. Stone, 572 N.W.2d at 730-31. Driving after cancellation as “injurious or harmful” to public safety (the definition of “inimical” referred to in the majority opinion) indicates no more heightened policy than “safety of persons and property on the roadways.” Indeed, drivers who may be actually inimical to public safety for reasons other than repeat driving under the influence violations are not allowed licenses, see, e.g., Minn.Stat. § 171.04, subd. 1(11) (persons unable to read official signs), and their driving despite the absence of licensure would not be considered a criminal/prohibitory offense. See Stone, 572 N.W.2d at 730.
The majority claims the court’s ruling is consistent with Stone. To be clear, we said in Stone, “[ejxamples of traffic laws which might raise substantially different or heightened public policy concerns include Minn.Stat. § 169.121 (prohibiting drinking and driving).” 572 N.W.2d at 731 (emphasis added). The majority chooses to ignore this tentative language. In any event, we did not in Stone label every aspect of section 169.121, which includes such diverse topics as mandatory driver education instruction, as criminal/prohibitory. Nor did we in Stone label every administrative consequence of drinking and driving to be a criminal/prohibitory law. The referenced phrase addresses only laws prohibiting drinking and driving, which the law at issue in this case does not do.
Finally, the majority claims that the ability of the state to enforce its criminal laws against persons who repeatedly drive under the influence is undermined if the license can be cancelled but the state cannot enforce the cancellation by imposing criminal penalties for driving after cancellation. However, the legislature has the authority to enact criminal laws involving repeat drunk driving offenses unrelated to licensure. Indeed, as the majority notes, there is now a felony level drunk driving offense reaching just this type of conduct. See Minn.Stat. § 169A.24 (Supp.2001) (prohibiting as a felony driving while impaired within ten years of the first of three or more qualified prior impaired driving incidents).
The logical progression of the majority’s analysis leads to the conclusion that laws regulating speed limits must be considered criminal/prohibitory because to do otherwise would impair the state’s ability to enforce its' criminal laws against careless and reckless driving. However, in Stone we held that speed limits did not raise heightened public policy concerns and careless and reckless driving did raise those concerns. 572 N.W.2d at 730-31. If it is the policy of the state that repeated DWI is a crime warranting more severe penalties, the legislature can so provide within the context of the criminal laws, rather than through administrative laws relating to licensure.
*92Our decisions in Stone and Johnson and the option for the state to enforce drinking and driving laws through criminal prohibition rather than regulatory licensure indicate that driving after cancellation poses no substantially different or heightened public policy concerns than the public policy behind driving. See Stone, 572 N.W.2d at 730. I would hold that our decision in Johnson prohibits us from considering predicate offenses when determining whether the focus of the test should be on the broad or narrow conduct in applying the Cabazon test. I would also hold that an offense related to licensure, including driving after cancellation as inimical to public safety is civil/regulatory in nature and therefore outside the state’s jurisdiction.
II.
The charge against Busse should be dismissed in any event because the state must but cannot prove each element of the charge against him. State v. Jones, 347 N.W.2d 796, 800 (Minn.1984). The majority contends that Busse waived any challenge to require the state to prove every element of the charge when he pled guilty. Busse attempted to use the procedure outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn.1980) for submitting a case to the court for decision while reserving pretrial issues for appeal. Lothenbach procedures require a plea of not guilty, but despite the parties’ and trial court’s intent to follow Lothenbach in this case, Busse pled guilty, an erroneous plea by all accounts. Given the expectation shared by all that they intended to follow the Lothenbach procedures, I would not hold that Busse’s erroneous guilty plea waived his right to challenge whether the state proved its case. See State v. Verschelde, 595 N.W.2d 192,195 (Minn.1999).
The majority also holds that by stipulating to the prosecution’s case, including that he was driving a car, Busse waived this challenge to the conviction. The state must prove more than that Busse drove a car, however. The state must prove as an element of the offense that operation of the motor vehicle required a driver’s license. Minn.Stat. § 171.24, subd. 5. The question presented by this element of the offense is related to the question addressed by the court in this appeal, however, and it is therefore particularly harsh to conclude that Busse waived the issue of whether his operation of the vehicle required a driver’s license.
The majority disposition thereby avoids the tough question of how, in the absence of a waiver of trial, the jury would have been instructed on this offense. A jury must be instructed on each element of an offense, LaMere v. State 278 N.W.2d 552, 557 (Minn.1979), and that unless the state proves each element, they must acquit, see State v. Larson, 281 N.W.2d 481, 485, 485 n. 2 (Minn.1979). Given that it is undisputed that a driver’s license is not required to drive on a reservation, Stone, 572 N.W.2d at 731, there is a serious question whether the state could prove that operation of the motor vehicle required a driver’s license, an element of Minn.Stat. § 171.24, subd. 5.
When Busse attempted to use the Loth-enbach procedure, everyone present in the courtroom understood that on appeal Busse would be challenging the state’s jurisdiction to enforce licensure laws on a reservation through a driving after cancellation charge. As such, I cannot agree that Busse waived a challenge to the state’s authority to require him to have a license when operating a motor vehicle.2
*93State statutes requiring a driver’s license to operate any motor vehicle on the streets and highways within the state do not apply to tribal members on the reservation. Stone, 572 N.W.2d at 731. Such licensure decisions fit squarely in the civil/regulatory arena. Because the state cannot prove that operation of the motor vehicle involved in this offense required a driver’s license, the state cannot prove an essential element of the offense and the charge must be dismissed.
Therefore, I respectfully dissent.
PAGE, Justice (dissenting).I join in the dissent of Justice Anderson, Russell A.
STRINGER, Justice (dissenting).I join in the dissent of Justice Anderson, Russell A.
. Of course, if Busse had been intoxicated while driving, the state could have charged him with an appropriate criminal offense, which provides a disincentive to drink and drive and calls into question the majority's additional assumption that enforcement of driving after cancellation on Indian reservations is necessary for the state to enforce its drinking and driving laws.
. Contrary to the majority’s characterization, I do not here suggest that use of a Lothenbach *93procedure is appropriate to challenge whether the state has proved the elements of the offense. As the majority acknowledges, this court has not decided that issue, although the majority proceeds to do so by stating that Busse was required to proceed to trial to challenge whether the state proved its case. I note only that the similarity in this case between the pretrial issue sought to be appealed (whether the state can enforce driving after cancellation on a reservation) is sufficiently close to the element of the offense challenged as unproven (whether operation of a motor vehicle (on reservation) required a driver’s license) that a finding of waiver is particularly harsh. I would leave for another day the scope of a stipulation to the state's case in a Lothenbach plea.