No. 92-019 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

JACK E. DEWART, 

Plaintiff and Appellant, 

THE STATE OF MONTANA, acting 

through the DEPARTMENT OF JUSTICE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Bobinski, Attorney at Law, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Peter Funk, 

Assistant Attorney General, Helena, Montana 

Mike McGrath, County Attorney, Helena, Montana 
Justice Karla M. Gray delivered the Opinion of the Court. 

Jack E. DeWart appeals from an Order of the First Judicial 

District Court, Lewis and Clark County, dismissing his complaint 

for declaratory and injunctive relief. We affirm. 

The issue on appeal is whether the District Court erred in 

concluding that 5 61-5-208(2), MCA (1989), requires a one year 

driver's license revocation when an individual is convicted of a 

blood alcohol concentration (BAC) violation within five years of a 

driving under the influence of alcohol (DUI) conviction. 

Appellant Jack DeWart (DeWart) was convicted of the offense of 

DUI pursuant to 5 61-8-401, MCA, on August 13, 1986. He was 

convicted of a BAC violation under 5 61-8-406, MCA, on March 6, 

1991. 

Following its standard practice, the Motor Vehicle Division of 

the Montana Department of Justice (Department) would have revoked 

DeWart1s driver's license for one year under 5 61-5-208(2), MCA, 

upon receiving notice of the March 6, 1991, BAC conviction. Before 

the Department could act, DeWart initiated a declaratory judgment 

action seeking to have the Department's interpretation of 5 61-5- 

208, MCA, declared erroneous as a matter of law and to permanently 

enjoin the Department from revoking his driver's license. He 

obtained a temporary restraining order preventing revocation by the 

Department. The Department agreed that the temporary restraining 

order would remain in effect until the court decided the issue on 

the merits. 

The District Court dismissed appellant's declaratory action in 

2 
an order dated October 29, 1991, and DeWart appealed. The parties 

agreed, and the District Court ordered, that the Department be 

restrained from revoking DeWart's driver's license pending 

resolution of this appeal. 

Did the District Court err in concluding that § 61-5-208(2), 

MCA (1989), requires a one year driver's license revocation when an 

individual is convicted of a BAC violation within five years of a 

DUI conviction? 

The District Court relied on this Court's interpretation of 

5 61-5-208(2), MCA, in Horton v. State (1986), 221 Mont. 233, 717 

P.2d 1108, in determining that a BAC violation within five years of 

a DUI violation mandates a one year driver's license revocation. 

It rejected appellant ' s argument, reasserted on appeal, that 

amendments to § 61-8-714, MCA, by the 1989 Montana legislature 

prohibit the use of DeWart's 1991 BAC conviction as a second 

conviction under 5 61-5-208(2), MCA (1989). 

Section 61-5-208(2), MCA, a civil penalty statute, has long 

provided for a six month driver's license suspension upon either a 

DUI or a BAC conviction and a one year revocation upon a second 

conviction within five years. The appellant in Horton argued, as 

does appellant here, that a BAC conviction within five years of a 

DUI conviction does not equal a second offense resulting in a one 

year license revocation under 61-5-208(2), MCA (1985). We 

rejected that argument, stating that the statute Itis plain, 

unambiguous and certain in providing that a BAC conviction 

following a DUI conviction . . . results in a license revocation 
for one year." Horton, 221 Mont. at 236. 

DeWart argues that Chapter 476, Laws 1989, introduced as House 

Bill 425, which made no change in the statutory language at issue, 

so altered related criminal penalty provisions as to necessitate an 

interpretation of 5 61-5-208, MCA, different from that made by this 

Court in Horton in 1986. The 1989 amendments to 3 61-8-714, MCA, 

the criminal penalty statute for DUI violations, added a new 

subsection (6) providing that [ f ] or the purpose of calcuf ating 

subsequent convictions under this section, a conviction for a 

violation of 61-8-406 [BAC violation] also constitutes a conviction 

for a violation of 61-8-401 [DUI violation]." DeWart asserts that 

this amendment, together with the absence of a corresponding 

amendment to the criminal penalty statute for BAC convictions and 

sketchy language from the legislative history, mandates a new 

interpretation of the civil penalty statute related to, but 

separate from, the criminal penalty statutes for DUI and BAC 

violations. DeWartfs argument misses the mark. 

The plain and clear language of 5 61-8-714(6), MCA (l989), 

limits its application to determining DUI penalties provided for in 

that section. The legislature had a clear opportunity to amend S 

61-5-208, MCA, to comport with the interpretation urged by 

appellant and chose not to do so. Indeed, the legislature has 

amended § 61-5-208, MCA, on numerous occasions since our decision 

in Horton and has never amended the language at issue here. Our 

role is to ascertain and declare what is contained in a statute, 

"not to insert what has been omitted.Ir Section 1-2-101, MCA. 
1989, do not change or impact the language we interpreted in Horton 

or our Horton decision. Therefore, we hold that the District Court 

did not err in concluding that § 61-5-208(2), MCA (1989), requires 

a one year license revocation when an individual in convicted of a 

BAC offense within five years of a DUI offense. 

Affirmed.