State ex rel. Griffith v. Brustkern

• Decision Date: 10 February 1983
• Docket Number: No. 82-367,82-367
• Citation: 40 St.Rep. 194,202 Mont. 438,658 P.2d 410
• Parties: STATE ex rel., R.J. GRIFFITH, Acting Chief of the Montana Highway Patrol, Plaintiff and Appellant, v. Joseph J. BRUSTKERN, Defendant and Respondent.
• Court: Montana Supreme Court

Page 410

658 P.2d 410

202 Mont. 438

STATE ex rel., R.J. GRIFFITH, Acting Chief of the Montana Highway Patrol, Plaintiff and Appellant, v. Joseph J. BRUSTKERN, Defendant and Respondent.

No. 82-367.

Supreme Court of Montana.

Submitted Jan. 11, 1983.

Decided Feb. 10, 1983.

Mike Greely, Atty. Gen., Helena, Sarah Power, Asst. Atty. Gen., argued, Helena, for plaintiff and appellant.

Morrow, Sedivy, Olson & Eck, Bozeman, Edmund P. Sedivy, Jr., argued, Bozeman, for defendant and respondent.

WEBER, Justice.

The Montana Highway Patrol petitioned Gallatin County District Court to have Joseph Brustkern, defendant and respondent, formally declared a habitual traffic offender. The District Court refused because Brustkern only had 11 habitual offender points and a formal declaration of habitual offender requires 30 points.

We vacate the District Court judgment.

The following issues are presented for review:

1. Whether the requirement imposed by section 61-11-211, MCA, that all habitual offender points be removed from a driver's record after revocation, applies to administrative suspensions under section 61-5-206, MCA.

2. Whether the constitutional grounds relied on by the District Court are applicable in this case.

On May 21, 1980, plaintiff, Montana Highway Patrol Bureau suspended the defendant's driver's license for six months on the basis of the defendant's driving record. Section 61-5-206(b), MCA, allows an administrative suspension of a license if a driver has been convicted with such frequency of serious offenses as to indicate a disrespect for traffic laws and disregard for the safety of others. At the time of the May 21, 1980 suspension, the defendant had accumulated 27 habitual offender points. After the six month suspension the defendant accumulated 11 additional habitual offender points.

On June 19, 1981, the Highway Patrol, through the Gallatin County Attorney and pursuant to sections 61-11-204, 205, petitioned Gallatin County District Court to have defendant formally declared an habitual traffic offender under sections 61-11-201, et seq., MCA, which authorizes habitual offender status for any driver accumulating a total of 30 points within a three-year period under the point system set out in 61-11-203(2), MCA. The Highway Patrol based its petition in District Court on the 27 points accumulated prior to the administrative suspension and the 11 points accumulated following the suspension.

After the Highway Patrol's petition was briefed and argued, the trial court ruled that the first 27 habitual offender points should have been removed from the defendant's record once they were used as a basis for the administrative suspension of the defendant's driver's license. Had that been done, the defendant's record would show only the 11 habitual offender points he accumulated after the administrative suspension. A formal declaration of habitual offender requires a total of 30 points. For that reason, the trial court refused to declare the defendant an habitual offender.

Under section 61-5-206, MCA, the Division of Motor Vehicles has the authority to suspend a driver's license for up to 12 months without a preliminary hearing if its records show that the driver has been convicted with such frequency of serious offenses against traffic regulations as to indicate a disrespect for traffic laws and a disregard for the safety of others.

Section 61-11-201, et seq., MCA, (Habitual Traffic Offender Act) provides for the revocation of the license of any driver who accumulates 30 habitual offender points. The statutes set the number of points which can be accumulated for various offenses. Section 61-11-211, MCA, of the act provides:

"Division to revoke license of habitual offender--method of removal of points upon revocation. Upon receipt of a court order declaring an habitual offender, the division shall revoke the driver's license or driving privilege of the individual named in the order for a period of 3 years from the date of the order. Additionally, the department shall remove from that individual's record those habitual offender points which were certified to the county attorney in the certification required by 61-11-204."

The State argues that the removal of points required by 61-11-211, MCA, applies only to revocations and not to administrative suspensions. Brustkern argues that the suspension statutes, 61-5-201, et seq., MCA, and the habitual traffic offender statutes, 61-11-201, et seq., MCA, are tied together and the statute removing the points from a driver's record should apply to both administrative suspensions and revocations under the Habitual Traffic Offenders Act.

"In construing legislation, the function of this Court is simply to ascertain and state what in terms or in substance is contained within the legislation." State ex rel. Palmer v. Hart (1982), Mont., 655 P.2d 695, 39 St.Rep. 2277, 2279. In reviewing 61-5-201, et seq., MCA, and 61-11-201, et seq., MCA, we find no indication that the legislature intended to apply the removal of points statute to any instance other than a revocation occurring under the habitual offender act. Section 61-11-211, MCA, provides that "upon receipt of a court order declaring an habitual offender" the department shall revoke the driver's license for three years and shall remove from the driver's record "those habitual offender points which were certified to the county attorney in the certification required by 61-11-204." A suspension under section 61-5-201, et seq., MCA, does not require either certification to the county attorney of habitual offender points or a court order. Section 61-11-211, MCA, requires removal of points only upon revocation under the Habitual Offender Act.

The District Court, in addition to concluding that the points were removed by 61-11-211, MCA, also concluded that "[t]o permit the plaintiff to suspend the defendant's driving privileges by repetition of various suspension statutes for the same offenses is a denial of procedural due process and is fundamentally unfair and unjust." The court, in its memorandum, stated that the removal of a license was "quasi-criminal in nature" and the use of the same points constituted "double jeopardy".

The Administrative proceeding to revoke a driver's license is a civil proceeding and not a criminal prosecution. Mills v. Bridges (1970), 93 Idaho 679, 471 P.2d 66, 69; People v. Shaver (1981), Colo., 630 P.2d 600, 604; People v. McKnight (1980), 200 Colo. 486, 617 P.2d 1178, 1183....