NO. 93-175
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
LARRY WAYNE THOMPSON,
Plaintiff and Appellant,
-v-
THE DEPARTMENT OF JUSTICE,
DRIVERS LICENSE BUREAU,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard R. Buley, Tipp & Buley, Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Brenda
Nordlund Assistant Attorney General, Helena,
Montana: Robert L. Deschamps, III, Missoula County
Attorney, Betty Wing, Deputy Missoula County
Attorney, Missoula, Montana
.?
Submitted on Briefs: January 27, 1994
Decided: March 24, 1994
@lerk
Justice Fred J. Weber delivered the Opinion of the Court.
Appellant Larry Wayne Thompson (Thompson) appeals the order of
the District Court of the Fourth Judicial District, Missoula
County, which suspended Thompson's driver's license for a period of
ninety days. We affirm the order of the District Court.
The sole issue for review is whether the District Court erred
in suspending Thompson's license for ninety days.
Thompson was arrested on October 14, 1992, for allegedly
driving under the influence of alcohol. The highway patrol officer
who stopped him conducted a number of field sobriety tests before
bringing him to the jail. When Thompson refused to take a
breathalyzer test at the jail, the officer took his driver's
license and submitted it to the Department of Justice's Drivers'
License Bureau (the Department), along with a statement that the
officer had reasonable cause to believe Thompson was driving under
the influence of alcohol.
On October 16, 1992, Thompson filed a petition in District
Court to review his license suspension. Neither the County
Attorney's Office nor the Department were served with a copy of the
petition and neither was notified in any manner of the filing of
the petition. The District Court issued an order on October 27,
1992, ordering the Department to restore the petitioner's driving
privileges for employment purposes pending a hearing. Thompson did
not set the petition for hearing or give notice. Following the
acquittal of Thompson in the Justice Court, on February 10, 1993,
the County Attorney requested a hearing on the petition of Thompson
2
which had been filed on October 16, 1992. Following the hearing on
March 2, 1993, the District Court determined that the arresting
officer had reasonable belief Thompson was driving under the
influence of alcohol and the court suspended Thompson's license for
ninety days.
At the District Court hearing the arresting officer was the
only witness to testify. In the course of the cross examination by
Thompson's counsel, the following questions and answers were given:
Q. . . . Officer Palmer, I'm handing you what's been
marked as Defendant's Exhibit "A." Is that the refusal
affidavit which you would have submitted to the Driver's
License Bureau or a copy of it?
A. Beside the obvious thing up in the corner, it
appears to be, yeah.
Q. Is that your signature?
A. Yeah.
. . .
MR. BDLEYZ Obviously, it also contains a photocopy of
Mr. Thompson's driving license.
The Exhibit "A" was admitted without objection. In oral argument
following the conclusion of the officer's testimony, Thompson's
counsel argued that Thompson's driver's license could not be
suspended unless there was a sworn report as required under 5 61-S-
402(3), MCA. Counsel argued that Thompson's Exhibit "A" shows that
the report which was submitted to the Driver's License Bureau is
not sworn and that as a result there was no authority to suspend
the license in the first instance.
The court inquired if this was a new issue which Thompson was
raising and if the absence of proof of a sworn statement had to be
3
considered in this proceeding. The court then inquired if this
document had been received from Helena and Thompson's counsel
advised that it had been obtained from the County Attorney's
Office. The court pointed out that there was no way to know if it
was the same as the form submitted to the Motor Vehicle Division.
The court further inquired if Thompson had notified the county that
this was an issue and was advised that he had not so notified the
county. The District Court then determined that it would not
consider the issue.
Section 61-S-402, MCA (1991), provides in pertinent part:
(3) If a driver under arrest refuses upon the
request of a peace officer to submit to a test designated
by the arresting officer as provided in subsection (1)
[relating to blood, breath or urine], non 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, drugs, or a combination of the two, 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). (Emphasis supplied.)
Subsection (5) provides for a suspension of ninety days with no
provision for a restricted probationary license upon a first
refusal to submit to blood, breath or urine testing.
Thompson contends that as a condition precedent to any
suspension of his license, the arresting officer was required by
statute to submit a sworn report to the Department. The District
Court relied on § 61-8-403, MCA (1991), for its decision not to
address this issue. Section 61-8-403, MCA (1991), provides in
4
pertinent part:
. . . [t]he court shall take testimony and examine into
the facts of the case, except that the issues shall be
limited to whether a peace 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,
drugs, or a combination of the two, 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.
Thus, according to the above-quoted statute, the District Court was
limited in the issues which it could address at the hearing.
The District Court entered its Findings of Fact, Conclusions
of Law and Order on March 3, 1993, determining that (1) the
arresting officer had reasonable grounds to believe that Thompson
was driving a motor vehicle upon a public way while under the
influence of alcohol: (2) that he had been placed under arrest; and
(3) that Thompson refused to take the requested breath test. In
Gebhardt v. State (1989), 238 Mont. 90, 95, 775 P.2d 1261, 1265,
this Court pointed out that a hearing held under the statute
regarding suspension of license--as in the present case--is a civil
proceeding, and that such civil proceeding is separate and distinct
from a criminal trial on the charge of operating a motor vehicle
while under the influence of alcohol. As a result, the
determination in Justice Court that Thompson was acquitted of
driving under the influence is not a factor to be considered in the
present case.
The District Court's jurisdiction in this case was limited by
5 61-s-403, MCA (1991). In Blake v. State (1987), 226 Mont. 193,
5
198, 735 P.2d 262, 265, we stated:
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. . . .
Where the language of a statute is plain, unambiguous,
direct, and certain, the statute speaks for itself. . .
. 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. (Citations omitted.)
The District Court concluded that under 5 61-8-403, MCA
(1991) and -I
r Blake the court was required to determine if the
officer had reasonable grounds to believe the person was driving
the vehicle while under the influence of alcohol, whether the
person was placed under arrest, and whether the person refused to
submit to the test. The District Court concluded those were the
only issues which it could properly determine.
We conclude that the District Court was correct in its
limitation of the issues to those above described. We further
conclude that the uncontradicted evidence supports the conclusion
reached by the District Court.
With regard to the issue raised by Thompson as to the filing
of the sworn report with the Department, we affirm the conclusion
of the District Court that it should not consider that issue. We
emphasize that neither the Department nor the County Attorney's
Office was given notice of the filing of the petition by Thompson.
In a similar manner, no notice was given to the State or County
Attorney's Office that Thompson was raising an issue as to the
filing of the proof of the sworn statement. As a result, neither
6
the County Attorney's Office nor the Department had the opportunity
to present the actual report which was received by the Department
to refute the contentions of Thompson. We conclude that the sworn
report issue was neither properly raised nor presented.
We affirm the District Court order of suspension of Thompson's
license.
We Concur: A<'
Justices
Justice William E. Hunt, Sr., dissenting.
I dissent from the opinion of the Court.
The majority follows the District Court's reasoning that at
the hearing on petitioner's petition, he attempted to raise a new
issue regarding proof of a sworn statement from the arresting
officer. The majority concludes that the court rightly limited
consideration of the officer's statement, pursuant to § 61-8-403,
MCA (1991). Further, the majority, in effect, says that petitioner
was obliged to notify both the county attorney and the Department
of Justice of his petition before presenting evidence at the
hearing that the officer had not filed a sworn statement along with
petitioner's driver's license, with the Driver's License Bureau.
I cannot agree.
Petitioner did not raise a new issue by offering this evidence
at the hearing. While the District Court correctly relied on
§ 61-8-403, MCA (1991), for a determination of the appropriate
scope of inquiry in a driver's license suspension appeal,
Exhibit "A" was certainly within that scope. Section 61-8-403, MCA
(1991), provides in part:
[T]he court shall take testimony and examine into the
facts of the case, except that the issues shall be
limited to whether a peace officer had reasonable qrounds
to believe the person had been drivinq . . . and whether
such nerson refused to submit to the rsobrietv] test.
[Emphasis added].
The issue of whether the peace officer's initial statement
contained reasonable grounds to believe petitioner was under the
influence of alcohol and/or drugs and refused to submit to a
8
sobriety test is supported directly by the veracity of that
statement.
[Rleasonable grounds exist if the facts and circumstances
within the personal knowledge of the arresting officer
would be sufficient to warrant a reasonable person to
believe that the motorist is under the influence of
alcohol.
Boland v. State (1990), 242 Mont. 520, 524, 792 P.2d 1, 3 (citing
Gebhardt v. State (1989), 238 Mont. 90, 97, 775 P.2d 1261, 1266).
The probable cause inquiry allowed in § 61-8-403, MCA (1991), and
the requirement in § 61-8-402(3), MCA (1991), that the officer file
a "sworn report", necessarily involve one issue--whether the peace
officer truly had reasonable grounds to make the arrest. The
statutes must be read together. The purpose of the officer's sworn
statement requirement under Montana's implied consent law,
6 61-8-402, MCA (1991), is to assure that an officer is accountable
for assertions that there is a particularized suspicion of
wrongdoing, and in particular, reasonable grounds to believe that
the arrestee had been driving or was in actual physical control of
a vehicle upon "ways of this state open to the public,l' and that
the person refused to submit to one or more sobriety tests.
The majority cites Blake v. State (1987), 226 Mont. 193, 735
P.2d 262, for the proposition that:
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.
Where the language of a statute is plain, unambiguous,
direct, and certain, the statute speaks for itself.
[Citations omitted].
9
Blake, 735 P.2d at 265. In keeping with this rule, we should not
turn a blind eye to the language in 5 61-8-402(3), MCA (1991),
which requires a peace officer to forward the driver's license to
the Driver's License Bureau with a sworn statement that he had
reasonable grounds to believe the arrested person had been driving
or was in actual physical control of a vehicle while under the
influence of alcohol and/or drugs. To ignore this requirement is
to ignore our own dictate that we should declare the terms or
substance of the statutes and not to insert language that would
allow a peace officer to forward a sworn statement only at his own
discretion. Petitioner did not attempt to raise a new issue
regarding proof of a sworn statement from the arresting officer,
and the court improperly limited consideration of the officer's
written statement, pursuant to § 61-8-403, MCA (1991).
As pointed out by the majority, Exhibit "A" was admitted
without objection. The District Court abused its discretion when
on its own motion it ruled that petitioner's evidence lacked
competency and refused to consider it. The State carried the
burden of objecting to the competency of petitioner's Exhibit "A1'
on the grounds that petitioner had not presented the best evidence.
By not preserving its objection, the State waived objection of the
evidence on appeal. Rule 103(a)(l), M.R.Evid. The effect of the
majority's opinion is to reverse the burden of proof in a civil
hearing. The decision alleviates the State's responsibility to
comply with the directives of § 61-8-402, MCA (1991), and puts the
10
burden on a defendant to produce evidence that would prove that an
officer had complied with the statute.
Finally, the majority places the burden on petitioner to
notify both the county attorney and the Department of Justice of
his petition before presenting evidence at the hearing that the
officer had not filed a sworn statement, along with petitioner's
driver's license, with the Driver's License Bureau. Section
61-g-403, MCA (1991), states in pertinent part:
[The] court is hereby vested with jurisdiction and it
shall be its duty to set the matter for hearing upon
10 days' written notice to the county attorney of the
county wherein the appeal is filed and such county
attorney shall represent the state . . . .
Nowhere does the statute require petitioner to give notice to the
county attorney and the Department of Justice that he had filed a
petition to appeal the suspension of his driver's license.
According to the statute, the District Court was required to notify
the county attorney of the matter.
For these reasons I dissent from the opinion of the majority.
Justice Terry N. Trieweiler joins in the foregoing dissent.
11
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
Section 61-8-403, MCA, allows any person whose license has
been suspended pursuant to 5 61-8-402, MCA, to petition the
district court for a hearing. The majority has concluded that the
district court can only resolve three issues at that hearing:
(1) whether the peace officer had reasonable grounds to believe
that the petitioner operated his vehicle under the influence of
alcohol; (2) whether the petitioner had been arrested: and
(3) whether the petitioner refused to submit to blood-alcohol
tests. However, the majority ignores the final sentence of
g 61-8-403, MCA, which provides that "[t]he court shall determine
whether the petitioner is entitled to a license or is subject to
suspension or revocation."
The last sentence of 5 61-8-403, MCA, necessarily requires
that the district court determine whether the petitioner's license
was properly suspended in the first place. The only procedure for
suspension of a driver's license under the circumstances which
exist in this case is provided for in § 61-8-402(3), MCA. That
section specifically requires that the officer who seizes a
driver's license for refusal to submit to a blood-alcohol test must
send the license with a sworn statement to the Department of
Justice and that the license shall not be suspended until "receipt
of the report . . . .'I Therefore, I conclude that in making the
determination which is required by § 61-8-403, MCA,--that is
whether petitioner's license was subject to suspension--the
12
District Court must necessarily decide whether the statutory
procedure provided as a prerequisite for suspension was followed.
In this case, based on the report which was admitted at the time of
petitioner's hearing without objection by the State, the correct
procedure was not followed.
The majority states that, because of lack of notice, neither
the County Attorney's Office nor the Department of Justice had an
opportunity to present the actual report. That would be of greater
concern if it was not the County Attorney who provided the copy to
petitioner in the first place, and if the District Judge had not
given the County Attorney an opportunity to call the officer back
to the stand in order to determine whether the copy admitted
conformed in all respects to the original. Based on my review of
the transcript, the County Attorney expressed no interest in
resolving that issue when given the opportunity to do so at the
time of the hearing.
For these reasons, I conclude, based on the record before us,
that petitioner's license was not properly suspended. I dissent
from the opinion of the majority and would reverse the judgment of
the District Court.
Just ,ice Wi.lliam E. Hunt, Sr., joins in the foregoing dissent.
Justice
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March 24, 1994
CERTIFICATE OF SERVICE
I hereby certify that the foilowing certified order was sent by United States mail, prepaid, to the
following named:
Richard R. Buley
Tipp & Buley
P.O. Box 3778
Missoula, MT 59806-3778
Hon. Joseph P. Mazurek, Attorney General
Peter Funk, Assistant
Justice Bldg.
Helena, MT 59620
Robert L. Deschamps, III, County Attorney
Betty Wing, Deputy
200 W. Broadway, Courthouse
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA