Montanye v. State

No. 92-561
IN THE SUPREME! COURT OF THE STATE OF MONTANA
1993

WILLIAM J. MONTANYE,
Petitioner and Appellant,
-v-

Respondent and Respondent.

APPEAL FROM: District court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Gregory A. Jackson, Jackson & Rice, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Peter
Funk, Assistant Attorney General, Helena, Montana

Submitted on Briefs: July 1, 1993
December 6 . 1993
Decided:
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from a judgment af the First Judicial
District Court, Lewis and Clark County, revoking petitioner's
driving license and finding that the New York law of Driving While
Ability Impaired by Alcohol is substantially similar to the Montana
law of Driving Under the Influence of Alcohol. We affirm.
The only question on appeal is whether the District Court
erred in determining that the New York law is substantially similar
to the Montana law so that petitioner's driving license was
properly revoked under Montana law?
William J. Montanye (Montanye) is a Montana resident who was
cited in the state of New York on February 29, 1992, for driving
while intoxicated. Montanye was convicted on March 6, 1992, of
driving while ability impaired, which is a charge of lesser degree
than the New York charge of driving while intoxicated. Montanye
was assessed a $350 fine and $250 cost, and his license was
suspended for 9 0 days.
On April 9, 1992, New York authorities notified the Motor
Vehicle Division of the Montana Department of Justice of Montanye's
conviction. This action was taken pursuant to the Uniform Driver
License Compact which both New York and Montana have adopted. See
5 61-5-401, MCA, which sets forth the Compact in Articles I through
IX and which is cited as "Driver License Compact." The Driver
License Compact requires that states are to report convictions of
charges occurring in their states to the home state of a violator.
 ~ollowingnotification, the Montana Department of Justice,
Motor Vehicles Division, suspended Montanye's Montana's driver's
license as of April 9, 1992, for a period of six months. On May 1,
Montanye initiated this action in District Court seeking review of
the driver's license usp pension action. Montanye also sought a
stay of the suspension which was granted on May 6, 1992.
The District Court, in an order filed October 9, 1992,
determined that, under the Driver License Compact, the New York
offense of Driving While Ability Impaired is substantially similar
to the Montana offense of Driving Under the Influence of Alcohol
(DUX). Further, the court determined that Montana should properly
suspend Montanye's license for six months, less the 90 days for
which Montanye had his driving privileges suspended in New York.
Because of the substantive changes made in the statute by
amendments, we set forth § 61-8-401, MCA (1991), as follows:
61-8-401. Persons under the influence of alcohol or
drugs. (1) It is unlawful and punishable as provided in
61-8-714 and 61-8-723 for anv person who is under the
influence of:
(a) alcohol to drive or be in actual Dh~sical
control of a vehicle upon the wavs of this state open to
the public;
...
(d) alcohol and anv danaerous or other drua to drive
or be in actual phvsical control of a vehicle within this
state.
(2) The fact that any person charged with a
violation of subsection (1) is or has been entitled to
use alcohol or such a drug under the laws of this state
does not constitute a defense against any charge of
violating subsection (1).
13) "Under the influence" means that as a result of
takina into the body alcohol. druas, or anv combination
thereof, a Dersonts abilitv to safelv operate a motor
vehicle has been diminished.
(4) Upon the trial of any civil or criminal action
or proceeding arising out of acts alleged to have been
 committed by any person driving or in actual physical
control of a vehicle while under the influence of
alcohol, the concentration of alcohol in the person at
the time alleged, as shown by analysis of the person's
blood, urine, or breath, shall give rise to the following
inferences:
(a) If there was at that time an alcohol
concentration of 0.05 or less, it may be inferred that
the person was not under the influence of alcohol.
(b) If there was at that time an alcohol
concentration in excess of 0.05 but less than 0.10, that
fact shall not give rise to any inference that the person
was or was not under the influence of alcohol but such
fact may be considered with other competent evidence in
determining the guilt or innocence of the person.
(cf If there was at that time an alcohol
concentration of 0.10 or more, it may be inferred that
the person was under the influence of alcohol. The
inference is rebuttable.
(5) The provisions of subsection ( 4 ) do not limit
the introduction of any other competent evidence bearing
upon the issue of whether the person was under the
influence of alcohol, drugs, or a combination of the two.
(Emphasis supplied.)
As emphasized, § 61-8-401(3), MCA, defines a person under the

influence of alcohol as one whose ability to safely operate a motor
vehicle has been diminished. In comparison, N.Y. Veh. and Traf.
Law 5 1192.1, provides:
Driving while ability impaired. No person shall operate
a motor vehicle while the person's ability to operate
such motor vehicle is impaired by the consumption of
alcohol.
Separate from the Driver License Compact provisions, Montana
9 61-5-204, MCA, allows suspension of a resident's license upon
conviction in another state, stating in pertinent part:
suspenaing resident's license upon conviction in another
state. The department is authorized to suspend or revoke
the driver's license
. . . ...
of any resident of this state
to drive a motor vehicle in this state upon
receiving notice of the conviction of the person in
another jurisdiction of an offense in that jurisdiction
which, if committed in this state, would be grounds for
 the suspension or revocation of the driver's license ..
Montana law provides that conviction of a DUI carries with it
a fine, imprisonment, and possible revocation or suspension of
license, Montanye was convicted in New York of driving while
impaired by alcohol which carries with it a potential punishment of
a fine, imprisonment or suspension of license.
Both laws deal with the driver's diminished ability to drive
while under the influence of alcohol. Both states provide for
suspension of driver's license as a punishment. The suspension is
90 days in New York and six months in Montana. &@ S 61-5-208,
MCA. Montanye contends that the two sets of laws are totally
dissimilar and that he should not have his license suspended here.
The declaration of policy in the Driver License Compact
adopted by both states provides a guide to the policy behind the
Compact, providing in S 61-5-401(1)(c), MCA:
the continuance in force of a license to drive is
predicated upon compliance with laws and ordinances
relating to the operation of motor vehicles in whichever
jurisdiction the vehicle is operated.
The law in New York prohibits a driver from driving when alcohol
impairs his or her ability to drive. The Montana law prohibits a
driver from operating a car when his or her ability to drive safely
is diminished.
As pointed out by the District Court, while the New York
statute does not define impaired or intoxicated, in the case of
People v. Miller (1975), 373 N.Y.S.2d 312, 314, the New York court
defined intoxication:
 Therefore, this court finds that it was the intention of
the Legislature that a person be convicted of driving
while intoxicated when it is established that he has
consumed enough alcohol so that his physical and mental
control are markedly diminished; or putting it another
way, that his iudument and abilitv to operate a motor
vehicle are adverselv affected to a substantial derrree.
(Emphasis added,)
If driving while intoxicated is defined as having one's
physical and mental abilities vlmarkedly"
diminished, driving while
alcohol impaired indicates that the degree of impairment is
somewhat less than markedly diminished.
The District Court here compared the similarities and
differences between the Montana and New York law and concluded that
while there were a few differences, the offenses are substantially
similar. The District Court emphasized that the conviction of
either offense could result in fine, imprisonment and loss of
driving privileges. It also emphasized that under New York law, a
Montana DUI conviction would be deemed driving while impaired and
therefore would come within the Driver License Compact provisions.
The District Court further concluded that the fact that the Montana
violation is a misdemeanor and the New York violation is a traffic
offense is not a significant difference. It pointed out that
Montana law requires finding that the driver has a diminished
capacity to operate his vehicle safely. New York law requires that
impairment be found when as a result of the ingestion of alcohol,
a driver's control of a vehicle is less than would be expected by
a reasonably prudent driver. The court concluded that a reasonably
prudent driver also would be a safe driver. The District Court
therefore concluded that the New York offense of driving while
impaired is similar to Montana's driving under the influence laws.
Under the Driver License Compact Montana is required to
determine if the offenses described in New York are of a
s substantially similar nature." Driver License Compact, Article
IV, (3), 5 61-5-401, MCA. We affirm the District Court's
conclusion that the New York offense of driving while impaired is
substantially similar in nature to the Montana law of driving under
the influence.
The dissent contends that since conviction in New York while
"impairedn requires a lesser degree of intoxication than Montana,
the offenses are not substantially similar. The dissent seems to
contend that under City of Helena v. Davis (1986), 222 Mont. 492,
723 P.2d 224, the only way in which a conviction can be obtained is
to spell out the alcoholic concentrations as set forth in the
present 5 61-8-401(4), MCA. That analysis ignores the changes
subsequently made to our statute after Davis was decided.
As noted, the 1991 5 61-8-401(4), MCA, provides for various
inferences which are to be applied to alcohol concentrations at
various levels. Apparently the dissent is suggesting that if these
elements are not presented within jury instructions, then under
Davis there cannot be impairment which is different than the state
of New York. We disagree with that analysis.
As a result the 1987 amendment to 5 61-8-401, MCA, Montana is
no longer limited to proof of alcohol concentration in a person's
blood, urine or breath. While previous subsections of 5 61-8-401,
MCA, contain the cut-off levels of blood alcohol content, the 1987
amendment has added a definition by which "under the influences'can
be defined not by a chemical analysis of the blood, but by the
observation that a "person's ability to safely operate a motor
vehicle has been diminished."
This 1987 amendment undermines any controlling affect of the
m decision. In Davis, we determined that the instruction given
to the jury which attempted to define "under the influencevp
was not
correct because such an evaluation had become more precise. In
1987, the definition of "under the influence" underwent another
change, this time it grew to include a definition which considered
the driver's ability to drive and not just his blood alcohol
content.
The reasoning concerns an outdated 1955 instruction
erroneously given to the jury in the 1986 case. That instruction
did not take into consideration the assumptions raised when blood
alcohol content was measured. Subsequent to 1955, the legislature
added assumptions as to ability to drive based upon the alcoholic
content of a person's blood. The law had been changed to reflect
those specific levels of alcoholic content in the blood. Thus, the
Davis Court was correct in reversing because the jury instruction
did not reflect the current assumptions contained in the law.
In 1987, the legislature determined that "under the influencew
is not exclusively determined by the blood" alcoholic content.
such content levels create inferences. Now, "under the influencen
is defined by the diminution of a person's ability to drive a
vehicle.
This is exactly what the New York law concerning mimpairment**
was meant to do. It was meant to give police a tool to determine
when a person's ability to drive was diminished, despite the lack
of breath analysis at the scene. People v. Cruz (1979), 423
N.Y.S.2d 625, 628. We conclude that the additions to the Montana
statutes are comparable to the additions to the New York statutes.
The Driver License Compact makes it reciprocal for states
adopting the uniform law to comply with the traffic laws in sister
adopting states. Montanye had not complied with New Yorksstraffic
laws. He was convicted of driving while impaired because of
alcohol and had his driving privileges revoked for 90 days. This
is half the time required by Montana law for a suspended license.
The District Court concluded that Montanye's driver's license could
not be suspended for more than a total of six months and therefore
subtracted from the Montana suspension the New York revocation of
90 days. The State of Montana has not cross-appealed the issue of
length of time for license revocation and we will not, therefore,
consider this issue on appeal. In order to preserve an issue not
raised by appellant, respondent must file notice of cross appeal.
Rules 5(a), 14, M.R.App.P.; Neumann v. Rogstad (l988), 232 Mont.
24, 757 P.2d 761.
We hold that the District Court did not err in determining
that the New York law is substantially similar to the Montana law
 so that petitioner's driving license was properly revoked under
Montana law.
Affirmed.

/'
We Concur: i

i "
p

Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the majority's opinion in this case.
The majority's opinion has not cited New York's statute in its
entirety. In its entirety, it provides for three separate offenses
which relate to operating motor vehicles under the influence of
alcohol. They are the following:
1. Driving while ability impaired. No person
shall operate a motor vehicle while the person's ability
to operate such motor vehicle is impaired by the
consumption of alcohol.
2. Driving while intoxicated; per se. No person
shall operate a motor vehicle while such person has a -10
of one per centum or more by weight of alcohol in the
person's blood as shown by chemical analysis of such
person's blood, breath, urine or saliva, made pursuant to
the provisions of section eleven hundred ninety-four of
this Article.
3. Driving while intoxicated. No person shall
operate a motor vehicle while in an intoxicated
condition.
N.Y. Veh. & Traf. Law 5 1192.
Paragraphs 2 and 3 of New York's statute are substantially
similar to 5 61-8-406 and -401, MCA, respectively. However,
defendant was convicted of subparagraph 1 of the New York law.
There is no counterpart in Montana for that paragraph.
The New York statute does not define the degree to which a
person must be under the influence of alcohol before he or she is,
as a matter of law, "impaired." The majority cites Pea* v. Miller
(1975)' 373 N.Y .S.2d 312, 314, for the principle that "intoxi~ated~~
means that a driver's ability to operate a vehicle is "adversely
affected to a substantial degree." However, in a more recent
decision, which was controlling at the time of this defendant's
conviction, the highest court of the State of New York held that
the requirement for "impairmentt1 is satisfied by a much lesser
degree of influence. In people v. Cruz (IYTY), 423 N.Y.S.2d 625, 628,

399 N.E.2d 513, 516, the New York Court of Appeals held that:

On its face, however, the statute does not speak of
degrees of: impairment; it simply prohibits the driving of
a motor vehicle when the driver's "ability to operate
such vehicle is impaired.'* (Vehicle & Traffic Law,
s. 1192, subd. 1). Thus drivinq a motor vehicle while
there is anv alcoholic impairment of the driver's
"ability to operate such vehiclets would constitute a
violation,

... It is evident from the statutory language and
scheme that the question in each case is whether, by
voluntarily consuming alcohol, this particular defendant
has actually impaired, to any extent, the physical and
mental abilities which he is expected to possess in order
to operate a vehicle as a reasonable and prudent driver.
[Emphasis added].
We have specifically held in Montana that the degree of
impairment which the New York court found sufficient to convict
under subsection 1 of its impairment law, is not sufficient to
convict under Montana's statute which prohibits operating a motor
vehicle while under the influence of alcohol.
In City ofHelena v. Davb (1986), 222 Mont. 492, 723 P.2d 224, we

held that it was error to instruct a jury that a person could be
convicted of operating a vehicle under the influence of alcohol in
violation of 5 61-8-401, MCA, if the jury simply found Itany
alcoholic impairment.s' In that case, the defendant was charged
with operating a motor vehicle under the influence of alcohol or
drugs in violation of 5 61-8-401, MCA. The jury was instructed,
over defense counsel's objection, that "[ilf the ability of the
driver of an automobile has been lessened in the slightest degree
by the use of aicohoi, then the driver is deemed to be under the
influence of alcohol.'* Davis, 723 P.2d at 225. On appeal, the

defendant contended that he could not violate § 61-8-401, MCA,
unless his driving ability was impaired "to a degree that [rendered] him

incapable of &
s driving a (moforj vehicle." Davis, 723 P.2d at 225

(underlining added). The defendant's position was as follows:
Davis asserts, the statute he was charged and convicted
of violating does contain a clear legislative directive
as to the extent of influence of the intoxicants. The
offense charged in this case does not say the law is
broken if one drives while impaired to the "slightest
degree;" rather, the law states an offense is committed
if one's driving ability is impaired "to a degree that
renders him incapable of safely driving a [motor]
vehicle. *
Davis, 723 P.2d at 226.

This Court agreed with the defendant and held that the
instruction given in the district court in that case:
[Nlo longer [was] a proper statement of the law in this
State and the instruction must either be revised or
abandoned to conform with the provisions of 5 61-8-401.
As noted above, we find the legislature today had
specifically spelled out in § 61-8-401 the extent of the
influence of intoxicants necessary to be convicted of
driving under the influence of alcohol or drugs. As
applied to the instant case, Davis is entitled to a new
trial with the jury being instructed as to proper
criteria set out in 5 61-8-401 which is applicable to a
charge of driving under the influence of alcohol andfor
drugs.
Davis, 723 P.2d at 227
 In its reference to the dissent, the majority opinion totally
misses the point. The point is that under New Yorkls offense of
driving while impaired, any degree of impairment is sufficient.
Under Montana's offense of driving while intoxicated, any degree of
impairment is not sufficient. The fact that Montana's statute sets
out inferences based on various levels of alcoholic concentrations
merely confirms that distinction.
The majority opinion states that "[alpparently the dissent is
suggesting that if these elements are not presented within jury
instructions, then under Davir there cannot be impairment which is

different than the state of New York. We disagree with that
analysis."
The dissent has nothing to do with jury instructions. The
dissent is based upon very clear distinctions between the New York
statute for which defendant was convicted, and the Montana statute
for which his license is being revoked. The difference, based upon
prior decisions from that state and this state, is the degree of
impairment necessary for conviction.
The majority opinion states that:
As a result of the 1987 addition to § 61-8-401, MCA,
Montana is no longer limited to proof of alcohol
concentration in a person's blood, urine or breath.
While previous subsections of § 61-8-401, MCA, contain
the cut-off levels of blood alcohol content, the newly
added subsection (3) has added a definition by which
"under the influence" can be defined not by a chemical
analysis of the blood, but by the observation that a
"person's ability to safely operate a motor vehicle has
been diminished."
 Subsection (3) of 5 61-8-401, MCA, does not have anything to
do with the method by which intoxication is proven and says nothing
about observation of an accused's physical or mental capacities.
It simply defines "under the influencett mean that as a result of
to
alcoholic consumption, "a person's ability to safely operate a
motor vehicle has been diminished." (Emphasis added).
For some reason which escapes me, the majority concludes that
based upon the addition of this definition in the 1987 amendment to
5 61-8-401, MCA, the Davis decision has no precedential signifi-

cance. However, that makes no sense. In Davis, we held that it was

error to instruct a jury that "[ilf the ability of the driver of an
automobile has been lessened in the slightest degree by the use of
alcohol, then the driver is deemed to be under the influence of
alcoh01.~~Davk, 723 P.2d at 225. We arrived at that conclusion

because of statutory presumptions based upon blood alcohol content.
We did not do so because of the absence of the definition which was
added by amendment in 1987. In fact, according to the defendant in
Davis, the definitional addition relied on by the majority was

already present since the statute under which he was charged
provided that:
(1) It is unlawful and punishable as provided in
61-8-714 for any person who is under the influence of

(d) alcohol and any drug to a degree thal renders him
incapable of safely driving a vehicle to drive or be in actual
physical control of a vehicle within this state.
 Therefore, there was no change to Montana's DUI statute in
1987 which has any bearing on our holding in Davk. We simply held

that any diminution in the ability to drive, no matter how slight,
did not constitute a violation of our DUI statute. If anything,
the amendment referred to in the majority opinion makes that
conclusion even more inescapable today.
Since conviction of driving while "impaired" in New York
requires a lesser degree of intoxication than driving "under the
influence" in Montana, the offenses are not substantially similar
as a matter of law. Indeed, if they were substantially similar,
New York would not find it necessary to establish two separate
offenses which differ only with regard to the degree of impairment
an individual suffers from the influence of alcohol.
For these reasons, I dissent from the majority opinion. I
would reverse the judgment of the District Court.

Justices Gray and Hunt join in the foregoing dissent.
 December 6, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

Gregory A. Jackson
Jackson & Rice
833 Last Chance Gulch
Helena, MT 59601

Hon. Joseph P. Mazurek, Attorney General
Peter Funk, Assistant
215 No. Sanders
Helena, MT 59620

ED SMITH
CLERK OF THE SUPREME COURT