No. 14472 IN

### THESUPREME COWOFTHE STATEOF J!42WANA 1979

STATEOFMXJTANA, Plaintiff andAppellant,

JAMES RICHAIiDJOHNSON, DefendantandRespondent.

Appealfrom: DistrictCourtof the FourthJudicialDistrict, HonorableJack L. Green, Judgepresiding. Counsel of Record: ForAppellant: Hon. Mike Greely, Attorney General, Helena, Mntana RobertL. Deschamps 111, CountyAttorney, Missoula, Plbntana For Respondent: E&mrd Chgs,Missoula, Plbntana

de,

. ' Filed: 

### i$!g Sukdttedonbriefs: January 15, 1979Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Plaintiff, the State of Montana, appeals from an order of the Missoula County District Court granting defendant's motion to dismiss proceedings for an evidentiary hearing on suspension of defendant'sdriver's license and ordering that his driving privileges be restored to him. The motion was granted without notice or opportunity to be heard and was further based on a misreading of section 32-2142.2(a), R.C.M. 1947, now section 61-8-403MCA. We reverse and remand the case for a hearing on the merits. Defendantwas arrested for driving while intoxicated and, according to the arresting officer, refused to submit to a breath test as required by Montana's implied consent law, section 32-2142.1, R.C.M. 1947, now section 61-8-402 MCA. Pursuant to this statute the Montana highway patrol board later requested surrender of defendant's driver's license for a period of sixty days beginning May 17, 1978. On May 31, defendant petitioned the District Court for

a hearing pursuant to section 32-2142.2(a), and on June 1, obtained an order staying suspension of his license. On July 20, the District Court scheduled the hearing for August 3. Cn August 1,defendant filed in the District Court and served on the county attorney a single page document entitled "motion to dismiss". Themotion sought dismissal of the August 3 hearing for the court's failure to set a hearing within thirty days of written notice to the county attorney of defendant's petition for a hearing. At the bottom of this document, language stating that the motion was granted and that defendant's driving privileges be reinstated was typed in for the court's signature. The next day, August 2, combination the court granted defendant's motion by signing the/motion and order. The State appeals.The determinative issues on appeal are whether the District Court erred: (1)by denying the State an opportunity to be heard in resisting the motion and relief sought, and (2)by granting the motion on the basis of a misinterpretation of section 32-2142.2(a), R.C.M. 1947, now section 61-8-403MCA. The court granted defendant's motion only one day after he filed it in the District Court and served a copy on the State. In effect, the court granted an 

### - ex parte motion to dismiss, and the adverseparty was not given notice or opportunity to be heard. Rule No. II(1) of the Uniform Rules for District Courts of Montana states: ''MOT IONS: "1. Upon serving and filing a motion under Rule 12,M. R. Civ. P., or within five days thereafter, themoving party shall serve and file a brief. The adverse party shallhave ten days thereafter within which to serve and file an answer brief. A reply brief may be served and filed within ten days thereafter. Upon the filing of briefs, the motion shall be deemed made and submitted and taken under advisement by the Court,unless the Court orders oral argument of said motion 

# .. . "Failure to file briefs within the prescribed time shall subject suchmotion to summary ruling, and the failure to file a brief by the moving party shallbe deemed an admission that, in the opinion of counsel, the motion is without merit, and such failure to file a brief by the adverse party shall be deemed an admission that in the opinion of counsel, the motion iswell taken 

# ..

# ." Although this rule specifically governs procedure for motions in civil actions,we believe the substance of its provision for notice and opportunity to be heard by the adverse party should be observed in criminal proceedings to ensure fundamental fairness and a fully informed court. Since the Statewas given no such notice or opportunity to be heard in this case, the court erred in granting defendant's motion.This error is compounded by the fact that the order of dismissal was based on an obvious misconstruction of section 32-2142.2(a), R.C.M. 1947,now section 61-8-403which provides: 

# ".

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# . RIGHT TOAPPEAL TO COURT. (a)Any person whose license or privilege to drive has been suspended,as hereinbefore authorized, the board shall immediately notify such person inwriting and such person shall have the right to file a petition within thirty (30)days thereafter for a hearing in the matter in the district court in the county wherein suchperson shall reside and such court is hereby vested with jurisdiction and it shallbe its duty to -- -- set thematter for hearing upon thirty (30)- 

### -- days' written notice to the county attorney of 

### -- the county wherein the appeal is filed 

# . .."

(Emphasisadded.) The State contends the phrase "it shallbe [the ~istrict Court's] duty to set the matter for hearing upon thirty days written notice to the county attorney" requires thirty days written notice to the county attorney before the hearing is held, rather than requiring a hearing be set within thirty days of the filing of a petition. We agree. The statute clearly requires that the county attorney be given at least thirty days written notice before the matter can be heard. Dismissalwas therefore doubly in error. In conclusion,we must add one word of caution. In light of the fact that the court order was somanifestly in error,procedurely and substantively, the State should more properly have moved for reconsideration by the District Court, rather than taking an appeal to this Court. By seeking allpossible resolution of such matters in the District Court, economy and efficiency of the judicial process is better achieved. The cause is reversed and remanded to the District Court for a hearing on themerits-We Concur:

Chief Justice /7

Justices