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 fiveyears of a driving under the influence of alcohol (DUI) conviction. AppellantJackDeWart (DeWart)was convicted of the offenseof 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 standardpractice,theMotor Vehicle Division of the Montana Department of Justice (Department)would have revoked DeWart1sdriver's license for one year under 5 

### 61-5-208(2), MCA, upon receiving notice of theMarch 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 topermanently enjoin the Department from revoking his driver's license. He obtained a temporaryrestraining orderpreventing revocationby the Department. The Department agreed that the temporary restraining order would remain in effect until the court decided the issue on the merits. TheDistrict Court dismissedappellant'sdeclaratory action in 2an 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 yeardriver's licenserevocation 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, indetermining that a BACviolationwithin 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 sixmonth 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 revocationfor one 

### year." 

### Horton, 221

### Mont. at 236. DeWart argues that Chapter 476,

### Laws 1989, introducedasHouse Bill 425,which made no change in the statutory language at issue,

soaltered related criminalpenaltyprovisions astonecessitate an interpretationof 5 61-5-208,MCA, different fromthatmadeby 

### 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 calcufating subsequent convictions under this section, a conviction for a violation of 61-8-406 [BAC violation] also constitutes

### a conviction for aviolation of 61-8-401 [DUIviolation]." 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. DeWartfsargument misses the mark. The plain and clear language of 5 61-8-714(6), MCA (l989), limits 

### its applicationtodetermining DUIpenaltiesprovided 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 insertwhat 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, wehold that the District Court didnot err in concluding that § 61-5-208(2), MCA (1989),requires

a one year license revocationwhen an individual in convicted of a BAC offense within five years of a DUI offense. Affirmed.