No. 86-245
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF THE SUSPENSION OF
THE DRIVER'S LICENSE OF WAYNE BLAKE,
Petitioner and Respondent,
-vs-
STATE OF MONTANA,
Respondent and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Kimberly A. Kradolfer, Asst. Atty. General, Helena
Tom Scott, County Attorney, Dillon, Montana
For Respondent:
Max A. Hansen, Dillon, Montana
Submitted on Briefs: Feb. 19, 1987
Decided: March 30, 1987
MAR : 0 IS87
!
Filed:
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The State appeals an order of the Beaverhead County
District Court granting Blake's petition for a provisional or
restricted driver's license based upon hardship factors. The
issue on appeal is whether a provisional or restricted
license may be granted upon hardship factors. We affirm in
part and reverse in part.
This is the second appeal of this action, the Court
having previously taken up the case in Matter of Suspension
of Driver's License of Blake (Mont. 1986), 712 P.2d 1338, 43
St.Rep. 143 (hereafter Blake I).
On October 10, 1984, Blake attended a club meeting in
Dillon, Montana. After the business meeting, most of the
members played cards and socialized. Blake admitted drinking
four or five beers that night. Blake and a fellow club
member, Parker, were the last members to leave the meeting.
They drained several prater pipes and locked the building
before getting into their cars to drive home between 1:30
a.m. and 2:00 a.m.
Blake traveled north on Montana Street through downtown
Dillon with Parker following. A police officer was driving
south on Montana Street when he observed Blake driving
erratically. The officer testified that Blake swerved in and
out of his driving lane numerous times. Parker testified
that Blake swerved just once. Blake claimed he swerved to
avoid a pedestrian; however, neither the officer nor Parker
claimed to see a pedestrian. The officer stopped Blake and
administered several field sobriety tests, none of which were
performed successfully. Blake was arrested for driving under
the influence of alcohol and was taken to the police station
where he refused to take a breathalyzer test. The officer
seized Blake's driver's license and the State subsequently
suspended Blake's driving privileges for 90 days.
Blake appealed the suspension to District Court
alleging the police lacked reasonable grounds (under
$ 61-8-402, MCA) to believe he had been driving a vehicle
while under the influence of alcohol. The trial judge held
that : (1) the initial stop was illegal for the police
lacked reasonable grounds to believe that Blake was operating
a motor vehicle while under the influence of alcohol prior to
the time Blake was stopped, and (2) since the initial stop
was illegal, Blake's driver's license should not have been
suspended. The State's motion for rehearing was denied, the
trial judge holding to his belief that the officer was not
justified in making the investigatory stop.
On appeal we found that the trial judge failed to
address the issues provided under the statute granting the
appeal ( $ 61-8-403, MCA). We held that the police officer
had apparently met the statutory requirements by proving: (1)
reasonable grounds to believe Blake was driving under the
influence of alcohol, (2) that Blake was placed under arrest,
and (3) that Blake refused to submit to the breathalyzer
test. Blake I, 712 P.2d at 1341. We concluded that the
District Court should have disposed of the case based upon
the requirements of S 61-8-403, MCA, and we intended to
remand to the lower court for findings on that basis but
instead we stated " [w]e remand the case for further hearings
on whether the petitioner should be granted a restricted
driving permit." Blake I, 712 P.2d at 1341.
The trial judge interpreted this statement as a
judicial broadening of § 61-8-403, MCA, from a three part to
a four part test so as to encompass the hardship aspects of a
particular case:
The Supreme Court remanded this cause for
findings as to the following:
1. Did the officer have reasonable
grounds to believe petitioner had been
driving a motor vehicle while under the
influence of alcohol?
2. Whether or not the petitioner was
placed under arrest?
3. Whether the petitioner refused to
submit to a blood alcohol test?
4. Whether petitioner should be granted
a restricted driving permit?
The issues have been briefed and
submitted. From the record, the Court
makes the following:
FINDINGS OF FACT
1. Following the stop, the officer had
reason to believe petitioner had been
driving while under the influence of
alcohol;
2. Petitioner was placed under arrest;
3. Petitioner refused to take a blood
alcohol test;
4. Petitioner's driving privileges were
suspended by the Motor Vehicle Division
under section 61-8-402 on October 14,
1984, and [the license] was returned
pursuant to an order of this Court on
December 1, 1984. He was without a
license a total of 48 days.
5. The companion criminal action in the
Dillon City Court charging the petitioner
with driving while intoxicated was
dismissed on motion of the City on April
15, 1985.
6. The records show without dispute that
petitioner is by occupation a truck
driver and the sole support of a young
family consisting of a wife and two small
children. Without a driver's license he
would be without employment, and his
family would in all probability become a
public charge.
From his reading of Blake I, the trial judge concluded that
Blake was entitled to a provisional or restricted driver's
license for employment purposes for the remaining 42 days of
the suspension:
The summary suspension of the
petitioner's driving privileges on
October 14, 1985 was under the statute,
as interpreted by the Supreme Court in
this cause, proper and is hereby
affirmed. Petitioner is given credit for
48 days on the summary 90-day suspension.
The Court's previous stay order is
vacated.
That pursuant to the Supreme Court's
mandate herein, the Court finds that the
petitioner is entitled to an appropriate
provisional or restricted driver's permit
for the balance of 42 days of his
suspension. The restricted license shall
be on such reasonable terms and
conditions as the Motor Vehicle Division
shall impose consistent with the spirit
and intent of this order; to restrict his
operation of a motor vehicle during the
remaining period of the suspension to the
driving necessary in the course of his
employment.
The suspension or revocation of a driver's license is a
civil proceeding. Lancaster v. Dept. of Justice (Mont.
suspension of driving privileges serves the purpose of
protecting the unsuspecting public. In Re France (1966), 147
Mont. 283, 411 P.2d 732.
We recently discussed what is commonly called the
implied consent statute in Matter of Orman (~ont.19861,
P.2d - 1 ,
- 43 St.Rep. 2228, 2230.
Section 61-8-402, MCA, in substance
provides that any person who operates a
vehicle upon the roads of this state
shall be deemed to have given consent to
a chemical test of his breath for the
purpose of determining the alcoholic
content of his blood if arrested by a
police officer for driving under the
influence of alcohol.
Subsections (3) and (5)(a) of S 61-8-402, MCA, read as
follows:
(3) If a resident driver under arrest
refuses upon the request of a peace
officer to submit to a chemical test
designated by the arresting officer as
provided in subsection (1) of this
section, none shall be given, but the
officer shall, on behalf of the
department, immediately seize his
driver's license. The peace officer
shall forward the license to the
department, along with a sworn report
that he had reasonable grounds to believe
the arrested person had been driving or
was in actual physical control of a
vehicle upon ways of this state open to
the public, while under the influence of
alcohol and that the person had refused
to submit to the test upon the request of
the peace officer. Upon receipt of the
report, the department shall suspend the
license for the period provided in
subsection (5).
( 5 ) The following suspension and
revocation periods are applicable upon
refusal to submit to a chemical test:
(a) upon a first refusal, a suspension
of 90 days with no provision for a
restricted probationary license.
(Emphasis added.)
As we stated in Orman, P.2d at , 43 St.Rep. at
Section 61-8-403, MCA, controls the
appeal from the suspension of a license
to the district court and in part limits
the issues to be considered bv the court
as follows:
". . .the court shall take testimony and
examine into the facts of the case,
except that the issues shall be limited
- whether abelieveofficer had reasonable
to
grounds to
peace
the person had been
driving or was in actual physical control
of a vehicle upon ways of this state open
to the public, while under the influence
of alcohol, whether the person was placed
under arrest, and whether such person
refused to submit to the test. The court
shall thereupon determine whether the
petitioner is entitled to a license or is
subject to suspension as heretofore
provided." (Emphasis added.)
The function of this Court is simply to ascertain and
declare what in terms or in substance is contained in the
statutes and not to insert what has been omitted. Matter of
Estate of Baier (1977), 173 Mont. 396, 567 P.2d 943. Where
the language of a statute is plain, unambiguous, direct, and
certain, the statute speaks for itself. State ex rel. Palmer
v. Hart (1982), 201 Mont. 526, 655 P.2d 965. Section
61-8-402, MCA, is patently clear that when a police officer
has reasonable grounds to believe a person was driving or in
actual physical control of a vehicle while under the
influence of alcohol and the person refuses to take a
chemical test, the State shall automatically suspend that
person's driver's license for 90 days upon first refusal.
More importantly, the statute explicitly states that the
driver will not be entitled to a restricted probationary
license. This Court is not at liberty to make additions to a
statute, for to do so would interfere with the domain of the
legislature.
As we said in Orman, the driver has the right to appeal
the suspension to the District Court under § 61-8-403, MCA.
The statute limits the inquiry to: (1) whether the police
officer had reasonable grounds to believe the person had been
driving or was in actual physical control of a vehicle upon
ways of this state open to the public, while under the
influence of alcohol, (2) whether the person was placed
under arrest, a.nd (3) whether such person refused to submit
to the test.
Section 61-8-403, MCA, does not grant authority to the
trial. judge to consider the issue of hardship as a mitigating
factor and does not give the judge the authority to grant a
restricted or probationary driver's license. The final
sentence in the statute reads: "The court shall thereupon
determine whether the petitioner is entitled to a license or
is subject to suspension as heretofore provided." This means
that a court must determine if the license suspension was
proper under the three part test of cS 61-8-403, MCA. On
remand, the District Court did apply the three part test and
found that Blake's license was properly suspended. We affirm
the District Judge's application of the test and his decision
to suspend Blake's driving privileges. We reverse his
decision that Blake be granted a provisional or restricted
license for employment purposes.
Affirmed in part, reversed in part.
I
We concur:
Justice A(
Mr. Justice John C. Sheehy, dissenting:
In this case Wayne Blake is guilty of - crime.
no The
purported charge against him was dismissed on the motion of
the city, an admission by the City that it had no evidence
upon which it could convict Blake. Is it then lawful that a
guiltless citizen can be deprived of a valuable property
right, his driver's license, merely on the unfounded
suspicion of a law enforcement officer? Certainly not, or I
should say, certainly not in a country that asserts that
life, liberty and the pursuit of happiness are inalienable
rights.
This Court erred in its holding in Blake I (1986), 712
P.2d 1338. Unable to admit its error, this Court compounds
its error by insisting that an innocent man be further
punished. To paraphrase Goldsmith, "Woe to the land, to
hastening ills a prey, where courts contribute to the law's
decay. "
a-
Justice
I concur with the foregoing dissent of Mr. Jptice John C . Sheehy .
Mr. Justice L. C. Gulbrandson, special response to dissent.
In response to the dissent of Justice John C. Sheehy,
concurred in by Justice William E. Hunt, Sr., it should be
pointed out that in the first sentence of his dissent filed
in Blake I (Mont. 1986), 712 P.2d 1338, 1342, he acknowledges
as follows:
Proceedings to suspend the driver's
license of one who refuses to submit to a
chemical test designated by the arresting
officer (section 61-8-402, MCA) and the
right of appeal granted such driver
(section 61-8-403, MCA) are civil in
nature.
It should be further noted that the companion criminal
action was dismissed on motion of the City Attorney in
writing as follows:
After checking with the Supreme Court in
Helena, Montana, I am convinced that we
will not get a decision in the Blake case
on probable cause for another six to nine
months. Therefore, I feel that you
should dismiss the D.U.I. charges pending
against Mr. Blake in your Court.
Robert G. Dwyer
City Attorney
April 15, 1985, Charge Dismissed as per
above letter from Atty. Dwyer
Judge Delaney
[City Police Judge]
In my view, the City Attorney's motion was appropriate
in view of the requirement that the State must bring the
defendant to trial within six months, and said motion should
not be characterized as an admission that there was no
evidence with which to convict the defendant.