dissenting.
I dissent. The majority apparently believes the trial court was mistaken in its legal conclusion that in order to prove a violation of § 5-1506, Wahpeton City Ordinances, the city must literally choose its poison, that is, not merely charge and prove driving under suspension or revocation but, instead, charge and prove one or the other, as though it made a difference. I can’t say I disagree with the majority on this point. It seems clear that the ordinance creates one offense — driving while a license has been removed either by suspension or revocation. What I do take issue with is the majority’s total disregard of the fact that the trial court did more in this case than draw a simple legal conclusion. Compare State v. Hogie, 424 N.W.2d 630 (N.D.1988) [judgment of acquittal was not an acquittal because it involved no resolution of factual elements of the offense of theft but, instead, was based on legal conclusion that auto theft could not be charged as a class B felony]. Based upon the evidence submitted to it, it resolved at least one of the factual elements of the offense charged — driving under suspension or revocation in violation of § 5-1506, Wahpeton City Ordinances.
The factual elements of the forbidden conduct and the attendant circumstances of the offense contained within § 5-1506, Wahpeton City Ordinances are: (1) driving (2) a motor vehicle (3) in the City of Wahpe-ton (4) while the driver’s license is suspended or revoked. See NDCC § 12.1-01-03. The trial court determined that the City did not prove the fourth element. The trial court was wrong, but its ruling of not guilty was nevertheless based on a resolution of at least one of the factual elements of the offense charged and is, therefore, an acquittal which, under our law, the City has no authority to appeal. State v. Flohr, 259 N.W.2d 293 (N.D.1977).
I would dismiss the appeal.