No. 85-615
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
MICHAEL KEVIN GEE,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
A. Michael Salvagni, County Attorney, Bozeman, Montana
Marty Lambert, Deputy County Attorney, Bozeman
For Respondent:
Bolinger & Foster; K. Robert Foster, Bozeman, Montana
Submitted on Briefs: June 24, 1986
Decided: August 11, 1986
Filed:
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
The State appeals from the order of the Gallatin County
District Court granting Gee's motion to dismiss for lack of
jurisdiction.
We affirm.
The issue on appeal is whether the District Court erred
in granting Gee's motion to dismiss the charge against him of
driving under the influence of alcohol, third offense, for
lack of jurisdiction because he had only one prior DUI
conviction as an adult.
On March 7, 1981, Gee was charged with DUI in Gallatin
County Justice Court. He pled guilty. Gee was 16 years old
at the time. On May 9, 1982, Gee was charged with DUI in
Bozeman City Court. He again pled guilty. He was 18 years
old at that time. On December 19, 1984, Gee was arrested for
DUI. An information was filed with the District Court
charging Gee with driving under the influence of alcohol,
third offense.
The District Court granted Gee's motion to dismiss the
information. The court based its order upon the language of
§ 61-12-601, MCA. That statute states:
(1) The district courts and the justices' courts
of the state and the municipal and city courts of
cities and towns shall have concurrent original
jurisdiction in all proceedings concerning the
unlawful operation of motor vehicles by children
under the age of 18 years.
(2) Whenever, after a hearing before the court, it
shall be found that a child under the age of 18
years has unlawfully operated a motor vehicle, the
court may:
(a) impose a fine, not exceeding $50, provided
such child shall not be imprisoned for failure to
pay such fine;
(b) revoke the driver's license of such child, or
suspend the same for such time as may be fixed by
the court; and
(c) order any motor vehicle owned or operated by
such child to be impounded by the probation officer
for such time, not exceeding 60 days, as shall be
fixed by the court. However, if the court shall
find that the operation of such motor vehicle was
without the consent of the owner, then such vehicle
shall not be impounded.
In its order, the District Court stated:
Under Montana law a minor who commits a vehicular
offense, including the offense of DUI, is found to
be guilty of unlawful operation of motor vehicles
under 5 61-12-601, MCA. The minor is not found to
be guilty of the principle offense charged.
Since Gee's first offense was a violation of S
61-12-601, MCA, the court found that Gee had only one prior
conviction as an adult under $ 61-8-401, MCA. Therefore,
Gee's current charge is DUI, second offense. The District
Court lacks jurisdiction to hear a charge of DUI, second
offense. State v. Heine (1976), 169 Mont. 25, 544 P.2d 1212.
So the court granted Gee's motion to dismiss.
The State makes two main arguments on appeal. First,
that $ 61-12-601, MCA, is unconstitutionally vague as a
criminal statute because it does not establish a crime, but
merely provides the forum where other traffic crimes found in
the Montana Code Annotated shall be prosecuted if a juvenile
driver is involved, and the penalties that the court may
impose. We disagree. The statute is not unconstitutionally
vague for failure to adequately describe prohibited conduct.
To determine what conduct is prohibited one must simply look
to the principal traffic offense charged. That does not make
the statute unconstitutionally vague. The Montana Youth
Court Act, $ 41-5-101, et seq., MCA, is similar. A
delinquent youth is defined at 5 41-5-103 (12), MCA, as a
youth :
(a) who has committed an offense which, if
committed by an adult, would constitute a criminal
offense.
If a juvenile is charged with burglary, he is not found
guilty of the offense charged, but is found to be a
delinquent youth. In order to determine whether a juvenile
is a delinquent youth or a youth in need of supervision, it
is necessary to refer to an underlying criminal statute.
That does not make the Youth Court Act unconstitutional.
Similarly, $5 61-12-601, MCA, establishes the offense of
unlawful operation of a motor vehicle by a minor. That
statute establishes the jurisdiction of the courts and the
penalties which can be imposed. The statute is not deficient
merely because one must look to other statutes to determine
whether the minor has unlawfully operated a motor vehicle.
Section 61-12-601, MCA, is not unconstitutional.
The State's second argument is that the District Court's
dismissal violates the policy of the Montana habitual traffic
offender laws, $55 61-11-201, et seq., MCA. Section
61-11-201, MCA, states:
This part is predicated upon the belief and
philosophy that innocent drivers and other innocent
passengers and pedestrians have a constitutional
right to live, free from fear of death or injury
from habitual traffic offenders. Further, it is
the purpose of this part to reduce the number of
motor vehicle accidents in this state and to
provide greater safety to the motoring public and
others by denying to the habitual traffic offenders
the privilege of operating a motor vehicle upon the
public streets and highways of this state.
The State argues that this statute makes no distinction
between juvenile and adult drivers, and making such a
distinction would frustrate the purpose of the habitual
traffic offender laws. The habitual traffic offender laws
provide for the accumulation of points upon conviction for
traffic offenses. A conviction for driving under the
influence of alcohol is 10 points. Section 61-11-203 (2)(d),
MCA. A conviction for unlawful operation of a motor vehicle
by a minor results in the accumulation of only 2 points.
Section 61-11-203(2) (L), MCA. An accumulation of 30 points
results in revocation of the offender's license for 3 years.
Section 61-11-211, MCA. Thus, concludes the State, allowing
a juvenile to be found guilty under S 61-12-601, MCA,
resulting in the accumulation of only 2 points violates the
purpose of the habitual traffic offender law.
We do not agree. The purpose expressed in S 61-11-201,
MCA, can be accomplished under the penalty provisions of S
61-12-601 (2)(b), MCA. Under that statute, the court may
"revoke the driver's license of such child, or suspend the
same for such time as may be fixed by the court." Under S
61-12-601, MCA, the minor's driver's license can be revoked
or suspended prior to the accumulation of 30 points.
Further, 5 61-12-601, MCA, does not contain the
mandatory jail provisions applicable to adults convicted
under S 61-8-401, MCA. The absence of incarceration is
consistent with the philosophy expressed throughout Montana
law to attempt to rehabilitate youthful offenders, not punish
them. Under 5 61-12-601(2)(a), MCA, the court has the power
to "impose a fine, not to exceed $50, provided such child
shall not be imprisoned for failure to pay such fine."
(Emphasis added.) One purpose of the Youth Court Act
declared in S 41-5-102(2), MCA, is:
(2) to remove from youth committing violations of
the law the element of retribution and to
substitute therefor a program of supervision, care,
rehabilitation, and, in appropriate cases,
restitution as ordered by the youth court.
The legislature is attempting to treat youthful offenders
differently than adult offenders. A conviction under S
61-8-401, MCA, as urged by the State, would result in jail
time for the youth. This conflicts with the emphasis placed
by the legislature on rehabilitation as opposed to
retribution when youthful offenders are involved.
We agree with the interpretation of the District Court
that a minor who commits a vehicular offense is guilty of
unlawful operation of a motor vehicle under S 61-12-601, MCA.
That stautute is not unconstitutionally vague because one
must refer to other vehicular offense statutes to determine
whether the minor engaged in unlawful operation of a motor
vehicle. Further, finding that a youth has violated §
61-12-601, MCA, upholds the policy of the habitual traffic
offender law, and is consistent with the philosophy found
throughout Montana law of emphasizing rehabilitation over
retribution.
The order of the District Court is affirmed.
We Concur:
Chief Justice
Mr. Justice L. C. Gulbrandson, dissenting:
I respectfully dissent.
Contrary to the declarations in the majority opinion,
the State does not argue that S 61-12-601, MCA, is unconsti-
tutional. The State's position is that the section does not
establish a criminal offense, and it was only when the Dis-
trict Court ruled that it established a crime did the consti-
tutional infirmity of vagueness arise.
The record is clear that the defendant entered a plea
of guilty to DUI (5 61-8-401, MCA) in Gallatin County Justice
Court on March 7, 1981, one month prior to his seventeenth
birthday, and that he pled guilty as an adult to DUI on May
9, 1982. The present DUI offense occurred December 19, 1984,
which date is within the five-year period contemplated by
§ 61-8-714 (3), MCA.
The Justice Court, on March 7, 1981, had jurisdiction
to accept the plea of guilty and was only limited in the
punishment it could impose under § 61-12-601, MCA.
This Court, in State of Montana ex rel. Lloyd Scott
Maier v. The City Court of Billings (Mont. 1983), 662 P.2d
276, 40 St.Rep. 560, stated:
The provisions of section 61-12-601,
MCA, are therefore exclusive as to
jurisdiction of traffic offenses involv-
ing minors, and youth courts in this
state are granted no jurisdiction of
such traffic law violations.
Maier, 662 P.2d at 281.
It is my opinion that the legislature, by excluding
traffic violations from the Youth Court Act (5 61-12-601,
MCA) and by opening a youth's traffic records to public
inspection (§ 41-5-602, MCA) has indicated a legislative
intent that juvenile drivers be subject to the same
responsibilities as adult drivers, although imprisonment is
not all-owed as punishment for juvenile traffic offenders.
The majority, by ruling that DUI offenses (no matter
how many) committed by a juvenile may not be considered in
the application of S 61-8-714 (3), MCA, in the prosecution of
an adult charged with DUI, in my view, is undermining the
policy of the habitual traffic offender law which it claims
to be upholding.
Once again, because of judicial decision, the legisla-
ture will be faced with the responsibility of declaring the
public policy of this State with regard to the prosecution of
DUI offenses under $ 61-8-714 (3), MCA, and the accumulation
of traffic conviction points under S 61-11-203(2) (d), MCA.
I would reverse the order of the District Court.
Mr. Justice Fred J. Weber dissents as follows:
I concur in the foregoing dissent of Justice
Gulbrandson.
The code section relating to the revocation of driving
privileges for habitual traffic offenders is presently con-
tained in §§ 61-11-201 to -215. This was enacted as Chapter
No. 362 in the 1974 Legislative Session. As enacted, the
title stated that it was an act relating to habitual traffic
offenders providing for a system of conviction points leading
to revocation of driving privileges. As appears from a
review of the Act, the essential element is that it affords a
means of taking away the license to drive of a person who has
demonstrated his apparent indifference for the safety and
welfare of others and his disrespect for the laws of Montana
and disregard of the orders of courts. - 5 61-11-202, MCA,
See
for the legislative intent. I believe it is readily possible
to give effect to the Act by taking away a driver's license
without contradicting the other penalties provided in §
61-12-601 and 61-8-401, MCA. I agree with Justice
Gulbrandson in noting that the Act does not suggest any
reason why the indifference of a driver to the safety and
welfare of others is any different for a minor offender than
for an adult. In fact, a minor indicates a greater disregard
and disrespect for the laws of the state when he consumes
alcohol, which is illegal for a person his age, and therefore
more accurately fits within the group of persons whom the
Legislature intended to control.
The defendant pleaded guilty to DUI ( S 61-8-401, MCA) in
justice court while 16 years of age. Under S 61-11-203, MCA,
"conviction" includes a finding of guilt by duly constituted
judicial authority as a result of a plea of guilty. It
c l e a r l y appears t h a t t h e 1 6 year o l d ' s p l e a of g u i l t y consti-
tutes such a conviction. I would t h e r e f o r e conclude t h a t
t h e r e i s a b a s i s under t h e s e s t a t u t e s f o r t h e d e t e r m i n a t i o n
by t h e c o u r t whether t h e d e f e n d a n t was a h a b i t u a l t r a f f i c
o f f e n d e r who s h o u l d be required to surrender h i s driver's
license. I would t h e r e f o r e r e v e r s e t h e Order o f t h e D i s t r i c t
Court.
Mr. Chief J u s t i c e J. A. Turnage, d i s s e n t s a s f o l l o w s :
I concur i n t h e f o r e g o i n g d i s s e n t of M r . J u s t i c e L. C.
Gulbrandson and t h e d i s s e n t of M r . J u s t i c e F r e d J . Weber.