Petition of Burnham

No. 85-75
IN THE SUPREME COURT OF THE STATE OF MONTANA

1985

IN THE MATTER OF THE PETITION
OF PAUL J. BURNIIAI",
Petitioner.

APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Hon. Mike Greely, Attorney General, Helena, Montana
Barbara Claassen, Asst. Atty. General, Helena
Craig R. Buehler, Fergus County Attorney, Lewistown,
Montana

For Respondent :
Torger S. Oaas, Lewistown, Montana

Submitted on ~riefs: May 30, 1985
Decided: September 10, 1985

SEP I 0 7985
~iled:
Mr. J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n of t h e
Court.

T h i s i s a n a p p e a l by t h e S t a t e o f Montana from a n o r d e r

of the District Court, Tenth Judicial District, Fergus

County. W e reverse. The f a c t s a r e a s f o l l o w s .

On November 3, 1984, r ~ s p o n d e n t Paul. J . Burnham was

a r r e s t e d f o r d r i v i n g under t h e i n f l u e n c e o f alcohol. A t the

t i m e o f h i s a r r e s t he r e f u s e d t o submit t o a b r e a t h t e s t t o

determine t h e l e v e l of h i s intoxication. Upon r e c e i p t o f a

sworn report by the arresting officer indicating the

respondent's refusal, the Motor Vehicle Division of the

Department of Justice, in accordance with S 61-8-403, MCA

n o t i f i e d r e s p o n d e n t i n a l e t t e r d a t e d November 1 4 , 1 9 8 4 , t h a t

his driver's l i c e n s e was suspended pursuant t o S 61-8-407,

MCA, M o n t a n a ' s i m p l i e d c o n s e n t s t a t u t e . The l e t t e r i n d i c a t e d

that for a first refusal to submit to a breath test

S 61-8-402 ( 5 ) ( a ) , MCA, m a n d a t e s "a s u s p e n s i o n o f 90 d a y s w i t h
no provision for a restricted probationary license.''

R e s p o n d e n t ' s l i c e n s e was suspended f o r t h e p e r i o d November 6 ,

1984 t o F e b r u a r y 3 , 1985.

On November 15, 1984, respondent pled guilty to the

o f f e n s e o f d r i v i n g under t h e i n f l u e n c e o f alcohol o r drugs

(DUI), i n v i o l a t i o n o f 5 61-8-401, MCA. S e c t i o n 61-5-208(2),

MCA, provides t h a t a person convicted o f a f i r s t o f f e n s e D U I

i s t o h a v e h i s l i c e n s e s u s p e n d e d f o r s i x months. However,

S 61-11-101 ( 2 ) , MCA, provides t h a t , upon t h e recommendation

of t h e c o u r t with j u r i s d i c t i o n over t h e offense, t h e Division

of Motor Vehicles "shall issue a restricted probationary

license unless the person otherwise is not entitled to a

Montana o p e r a t o r ' s o r c h a u f f e u r ' s l i c e n s e . "
 Thereafter, on November 26, 1984, Burnham filed a
petition pursuant to § 61-8-403, MCA, with the District
Court, Fergus County. The purpose of the petition was to
procure a probationary license needed for his employment. On
December 7, 1984 the District Court issued the following
order:
The petition in the above entitled matter
having come before the court pursuant to
proper notice under 61-8-403 M.C.A. and
the court being advised that petitioner,
in fact, pled guilty to a violation of
61-8-401 M.C.A. within a week of
initially refusing to take a breath test;
it is hereby ordered under 61-8-401
M.C.A. that petitioner's plea of guilty
constitutes a withdrawal of his refusal
to take a breath test under 61-8-403
M.C.A.
The Motor Vehicle Division filed a motion for rehearing
of this matter on December 14, 1984, pursuant to Rule 60(b),
M.R.Civ.P., on the basis that the Division should be relieved
from the order. The motion was not ruled on and therefore
was deemed denied after 45 days from its filing in accordance
with Rule 60 (c), M.R.Civ.P. The Motor Vehicle Division
appeals the denial of its motion for rehearing and requests
relief from the December 7, 1984, order of the District
Court.
Before considering the substantive issue of this appeal
we direct our attention to several procedural issues raised
by Burnham.
First, Rurnham argues that because the Motor Vehicle
Division failed to file an undertaking for costs on appeal as
required by Rule 6, M.R.App.Civ.P., this appeal should be
dismissed under Rule 4 M.R.App.Civ.P. He has failed to
notice, however, that 25-1-402, MCA, specifically exempts a
governmental entity, the Motor Vehicle Division in this case,
from t h e requirement to file an undertaking. Second, he

seeks t h e dismissal of t h i s appeal a s not being timely f i l e d .

He argues that the time for filing of notice of appeal

e x p i r e d 30 d a y s a f t e r t h e December 7 , 1 9 8 4 , o r d e r was f i l e d .

However, w e c o n s i d e r t h i s o n l y a 6 0 ( b ) m o t i o n . The f u l l t i m e

f o r a p p e a l t h e n commences t o r u n upon t h e g r a n t i n g o r d e n y i n g

o f t h e motion t o a l t e r o r amend t h e judgment.

I t i s t r u e , a s Burnham c o n t e n d s , t h a t t h e S t a t e was n o t

a s careful a s it s h o u l d h a v e been i n making i t s m o t i o n o f

December 14, 1984. In the first place the motion was

mistitled. The State obviously was making a Rule 6O(b),

M.R.Civ.P. motion for relief from t h e o r d e r o f December 7 ,

1984, and was a s k i n g f o r a r e h e a r i n g t o p r e s e n t i t s a r g u m e n t .

The request for a rehearing was tangential to the real.

purpose o f t h e motion. Further, the State failed t o identify

t h e s t a t u t o r y b a s i s f o r i t s motion u n t i l i t s n o t i c e o f a p p e a l

f i l e d on F e b r u a r y 1 9 , 1985. However, d e s p i t e t h e s e d e f e c t s ,

t h e S t a t e d i d i d e n t i f y w i t h p a r t i c u l a r i t y t h e grounds f o r i t s

m o t i o n and t h e r e l i e f sought. Therefore t h e S t a t e complied

w i t h R u l e 7 ( b ) , M.R.Civ.P. Whatever f l a w s t h e r e may b e i n

the State's motion are not grounds for dismissal of this

appea 1 .

Finally, Burnham argues for dismissal because of an

alleged failure of t h e S t a t e t o o b j e c t t o t h e December 7 ,

1984 o r d e r . Rule 2 , M.R.App.Civ.P., states:

Upon a p p e a l from a judgment, t h e c o u r t
may r e v i e w t h e v e r d i c t o r d e c i s i o n , and
any intermediate order or decision
excepted or objected to within the
meaning o f R u l e 46 o f t h e Montana R u l e s
o f C i v i l P r o c e d u r e , which i n v o l v e s t h e
merits, or necessarily affects the
judgment, e x c e p t a d e c i s i o n o r o r d e r from
which a n a p p e a l m i g h t h a v e b e e n t a k e n .

R u l e 46, M.R.Civ.P., states:
 Formal exceptions to rulings, orders, or
findings of the court are unnecessary;
but for all purposes it is sufficient
that a party, at the time the ruling or
order of the court is made or sought,
makes known to the court the action which
he desires the court to take, or his
objection to the action of the court and
his grounds therefor; and, if a party has
no opportunity to object to a ruling or
order at the time it is made, the absence
of an objection does not thereafter
prejudice him.
The hearing on the petition filed by respondent was
held in the judge's chambers. There was no transcript made
of the hearing. We know from a minute entry of the court
that Burnham and attorneys for the State were present and
presumably advanced their respective positions. We do not
know if the court made its ruling immediately upon close of
arguments so we do not know if the State's counsel had
opportunity to make an immediate objection. We presume that
if State's counsel had the opportunity to object he did so.
Absent that opportunity, as Rule 46 M.R.Civ.P. provides, the
State obviously is not prejudiced by failing to object; but
in any event the State objected by filing a motion for
rehearing in the District Court. The scant record i.n this

case does not indicate a violation by the State of the above
quoted rules and reveals no basis whatsoever for a dismissal
of this appeal.
The substantive issue presented is whether the District
Court properly ordered that Burnham's plea of guilty to the
offense of driving under the influence of alcohol or drugs
constituted a withdrawal of his refusal to take a breath test
under Montana's implied consent statute. Since we find that
there is no connection between 5 61-8-401, MCA, (prohibiting
the operation of a motor vehicle while under the influence of
alcohol or drugs) and $ 61-8-402, MCA, (requiring consent to
a chemical t e s t t o determine blood a l c o h o l c o n t e n t ) t h e o r d e r

of t h e District Court i s reversed. S e c t i o n 61-8-402 provides

i n p e r t i n e n t p a r t a s follows:

(1) Any p e r s o n who o p e r a t e s a motor
v e h i c l e upon ways o f t h i s s t a t e open t o
t h e p u b l i c s h a l l b e deemed t o h a v e g i v e n
consent, subject t o t h e provisions of
61-8-401, t o a chemical t e s t o f h i s
blood, b r e a t h , o r u r i n e f o r t h e purpose
of determining t h e a l c o h o l i c content of
h i s b l o o d i f a r r e s t e d by a p e a c e o f f i c e r
for driving o r i n actual physical control
of a motor v e h i c l e w h i l e under t h e
influence of alcohol. The t e s t s h a l l b e
administered a t t h e d i r e c t i o n o f a peace
officer having reasonable grounds t o
b e l i e v e t h e person t o have been d r i v i n g
o r i n a c t u a l p h y s i c a l c o n t r o l of a motor
v e h i c l e upon ways o f t h i s s t a t e open t o
t h e p u b l i c while under t h e i n f l u e n c e o f
alcohol. The a r r e s t i n g o f f i c e r may
d e s i g n a t e which o n e o f t h e a f o r e s a i d
tests s h a l l be administered.

(3) I f a r e s i d e n t d r i v e r under a r r e s t
r e f u s e s upon t h e r e q u e s t o f a p e a c e
o f f i c e r t o submit t o a chemical t e s t
d e s i g n a t e d by t h e a r r e s t i n g o f f i c e r a s
provided in subsection (1) o f this
s e c t i o n , none s h a l l b e g i v e n , b u t t h e
o f f i c e r s h a l l , on b e h a l f o f t h e d i v i s i o n ,
immediately s e i z e h i s d r i v e r ' s license.
The p e a c e o f f i c e r s h a l l f o r w a r d t h e
license t o t h e division, along with a
sworn report t h a t he had reasonable
grounds t o b e l i e v e t h e a r r e s t e d person
had been driving o r was in actual
p h y s i c a l c o n t r o l o f a m o t o r v e h i c l e upon
ways o f t h i s s t a t e open t o t h e p u b l i c ,
w h i l e u n d e r t h e i n f l u e n c e o f a l c o h o l and
t h a t t h e p e r s o n had r e f u s e d t o s u b m i t t o
t h e t e s t upon t h e r e q u e s t o f t h e p e a c e
officer. Upon r e c e i p t o f t h e r e p o r t , t h e
d i v i s i o n s h a l l suspend t h e l i c e n s e f o r
t h e period provided i n subsection ( 5 ) .

(5) The following suspension and
r e v o c a t i o n p e r i o d s a r e a p p l i c a b l e upon
r e f u s a l t o submit t o a chemical test:

( a ) upon a f i r s t r e f u s a l , a s u s p e n s i o n o f
90 days with no provision for a
r e s t r i c t e d probationary license;
 W e h a v e h e l d on s e v e r a l occasions t h a t t h e revocation

of a driver's license is a civil sanction, not a criminal

penalty. S t a t e e x r e l . Majerus v . Carter (Mont. 1 9 8 4 ) , 693

P.2d 501, 4 1 S t . R e p . 2468; S t a t e e x r e 1 G r i f f i t h v. B r a s t h e r n

(Mont. 19831, 658 P.2d 410, 40 St.Rep. 194; In re France

( 1 9 6 6 ) , 147 Mont. 283, 4 1 1 P.2d 732. T h i s i s e v i d e n t from a

r e a d i n g o f S 61-8-401, MCA, which s t a t e s t h a t t h e p u n i s h m e n t

for driving under the influence of alcohol or drugs is

provided f o r i n S 61-8-714, MCA; S 61-8-714, MCA, makes no

provision f o r the revocation of a d r i v e r ' s license. This i s

the basis f o r our past findings that the purpose o r the

suspension o f a d r i v e r ' s l i c e n s e i s n o t punishment b u t i s t h e

protection of the public. S e e B r u s t h e r n and F r a n c e , supra.

Other c o u r t s have considered implied consent s t a t u t e s

similar t o ours and have distinguished them from criminal

statutes that proscribe driving under the influence of

alcohol o r drugs. The Oklahoma Supreme C o u r t h a s s t a t e d " t h e

w e l l recognized r u l e . . . that the a c q u i t t a l of a defendant

i n t h e c r i m i n a l m a t t e r on t h e c h a r g e o f d r i v i n g under t h e

influence of intoxicating liquor is not a bar to the

s u s p e n s i o n o f t h e d r i v e r ' s l i c e n s e and t h a t s u c h f i n d i n g h a s

no b e a r i n g on the civil proceedings revoking h i s driver's

l i c e n s e under the Implied Consent S t a t u t e s . " M a r q u a r d t v.

Webb (Okla. 1 9 7 6 ) , 545 P.2d 769, 772. I n an e a r l i e r case t h e

same c o u r t s t a t e d :

The i m p l i e d c o n s e n t law i s n o t a c r i m i n a l
proceeding. It is a civil administrative
p r o c e e d i n g s e p a r a t e and d i s t i n c t from t h e
criminal a c t i o n on a charge o f d r i v i n g
while intoxicated. Each proceeds
independently of t h e o t h e r .. .
The f a c t
t h a t i n t h e criminal proceedings t h e
d r i v e r i s n o t p r o v e n beyond a r e a s o n a b l e
doubt to have been driving while
intoxicated has no b e a r i n g on c i v i l
proceedings under t h e implied consent
 statutes revoking his driver's license
for refusal to submit to a chemical test.
Robertson v. State ex rel. Lester (Okla. 1972), 501 P.2d
1099, 1103. Similarly, the Supreme Court of Minnesota has
stated that:
[rlevocation under the implied-consent
law is essentially civil in
nature ... It is imposed
administrative1.y by the commissioner of
public safety regardless of the outcome
of the criminal proceeding arising out of
the same incident and is triggered by the
refusal to submit to chemical testing.
State Dept. of Public Safety v. Mulvihill (Minn. 1975), 227
N.W.2d 813, 818. Also the Supreme Judicial Court of Maine,
responding to a series of questions from the Maine
legislature, found that it would be proper for that state to
adopt a law suspending a person's license for refusing to
submit to a chemical test to determine blood alcohol level.
The suspension would be valid "whether or not the person is
subsequently convicted of the offense charged." Opinion of
the Court (Me. 1969), 255 A.2d 643, 649. ina ally, the
Missouri Court of Appeals has stated:
The purpose of [the implied consent law],
which authorizes license revocation, is
to protect the public, not to punish the
licensee. [Citation omitted.] For even
though a driver may be acquitted of the
criminal charge of operation of a vehicle
while intoxicated, his license
nevertheless may be revoked for failure
to submit to the test. The operation of
a motor vehicle while intoxicated may
give rise to two proceedings, one
criminal or quasi-criminal [breach of
statute or ordinance], and the other
civil [revocation of 1icence]--each
proceeding independent of the other.
Tolen v. Missouri Department of Revenue (Mo.App. 1978), 564

We agree with our sister jurisdictions that have
considered this matter. Respondent's refusal to submit to a
c h e m i c a l t e s t i s a n i s s u e s e p a r a t e and d i s t i n c t from w h e t h e r

o r not h e was guilty of DUI. There i s no q u e s t i o n that

r e s p o n d e n t r e f u s e d t o t a k e t h e b r e a t h t e s t r e q u e s t e d by t h e

officer. Section 61-8-402, MCA is very clear that the

o f f i c e r was r e q u i r e d t o make a sworn r e p o r t and t h e D i v i s i o n

was required to suspend respondent's license for 90 days

(since it was a first refusal) with no possibility of a

probationary license. There i s nothing i n t h i s s e c t i o n , o r

any o t h e r s e c t i o n o f t h e c o d e , t h a t a l l o w s a w i t h d r a w a l o f a

r e f u s a l t o submit t o a chemical test. The f a c t t h a t Burnham

pled g u i l t y t o D U I and f a c e d a p e n a l t y f o r t h a t o f f e n s e i s

unrelated t o his refusal to take a chemical test and the

s a n c t i o n imposed t h e r e f o r .

Respondent w r i t e s i n h i s b r i e f :

[ I ]t i s h a r d t o u n d e r s t a n d why t h e S t a t e
has appea l e d . Apparently it is
a t t e m p t i n g t o o b t a i n a r u l i n g t h a t would,
i n e f f e c t , make it p o s s i b l e f o r t h e
Department o f Justice, Motor V e h i c l e
d i v i s i o n t o g e t a suspension o f d r i v e r s
[ s i c ] l i c e n s e f o r 90 d a y s p l u s s i x months
i f one r e f u s e d t o t a k e a b r e a t h t e s t and
is convicted of driving under the
influence.

First, we assume that the State has appealed i n order to

protect the i n t e g r i t y of the implied consent statute, the

purpose of which is to aid in the battle against drunk

driving. Second, Burnham h a s r u n a f o u l o f two s t a t u t e s , b o t h

o f which p r o v i d e f o r t h e s u s p e n s i o n o f h i s d r i v e r ' s l i c e n s e .

Section 61-5-208(2), MCA, provides t h a t a person g u i l t y of

f i r s t offense DUI, a s Burnham was i n t h i s c a s e , i s t o have

his license suspended for s i x months b u t can, pursuant to

S 61-11-101 ( 2 ) , r e c e i v e a r e s t r i c t e d p r o b a t i o n a r y l i c e n s e on
the recommendation of the sentencing court. As noted,

refusal t o give consent under t h e implied consent s t a t u t e s
results in a 90 day suspension with no provision for a
probationary license. A violation of both the DUI statutes
and the implied consent statute means that the suspensions
run concurrently. In this case Burnham should not have been
eligible for a probationary license until the 9 0 day implied
consent suspension had been completed.
We hold that the District Court order of December 7,
1 9 8 4 was in error and the suspension of respondent's driver's

license is hereby reinstated For the balance of the 90 day
period as provided in § 61-8-402, MCA.

We concur: A