No. 88-601 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsKEVIN LESLIE DELAP, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bruce E. Becker, City Attorney, Rozeman, Montana 

Karl P. Seel, Rozeman, Montana 

For Respondent: 

James A. Johnstone, Bozeman, Montana 

Submitted on Briefs: March 23, 1989 

Decided: May 10, 1989 
Mr. Justice I,. C. Gulbrandson delivered the Opi-nion of the 

Court. 

The State of Montana appeals the order of the 

Eighteenth Judicial District Court, Gallatin County, 

dismissing two charges against Kevin Delap (Delap) . Delap 

wa.s convicted in City Court in Bozeman, Montana, of violating 

§ 61-8-401, MCA, driving under the Infl.uence, and § 23-2-631, 

MCA, operating a snowmobile on a city street. Delap appealed 

his conviction to the District Court which dismissed both 

charges. In dismissing the 5 61-8-401, MCA, charge, the 

District Court noted thet the dismissal does not preclude the 

State from charging Delap under 5 23-2-632(1)(b), YCA, the 

snowmobile DUI statute. We affirm the order of the District 

Court as to dismissal of the $3 61-8-401, MCA, charge. 

On December 13, 1987, Bozeman city police arrested 

Delap. At the time of his arrest, Delap was operating a 

snowmobile. His blood alcohol was determined by a breath 

test to be .174. 

After Delap was convicted in City Court of both 

offenses charged, he appealed and was tried in District Court 

on October 14, 1988. Following trial, the court dismissed 

the charge under § 61-8-401, MCA, and found 5 23-2-631, MCA, 

inapplicable because a controlled access highway was not 

involved. 

The State presents two issues on appeal: 

1. Is a snowmobile a vehicle as defined in § 61-1-103, 

MCA,and thus subject to the restrictions in § 61-8-401, MCA, 

prohibiting the operation of a vehicle upon the ways of the 

state while under the influence of alcohol? 

2. Does the civil offense of driving a snowmobile 

while under the influence of alcohol in violation of 
S 23-2-623 (1) (b) supersede and preclude charging a defendant 

under 5 61-8-401, MCA? 

Delap was charged with violating S 61-8-401, MCA. The 

pertinent part of this statute provides: 

Persons under the influence of alcohol or 

d.rugs. (1) It is unlawful and punishable 

as provided in 61-8-714 and 61-8-723 for 

any person who is under the influence of: 

(a) alcohol to drive or be in actual 

physical control of a vehicle upon the 

ways of this state open to the public[.] 

Section 61-8-401(1) (a), MCA. As used in this statute, the 

term vehicle is defined as follows: 

"Vehicle" means every device in, upon, or 

by which any person or property may be 

transported or drawn upon a public 

highway, except devices moved by animal 

power or used exclusively upon stationary 

rails or tracks. However, in chapters 3 

and 4, the term means "motor vehicle" as 

defined in this part; and in chapter 8, 

part 4, this term does not include a 

bicycle as defined in 61-1-123. 

Section 61-1-103, MCA. Our reading of the plain language of 

this statute indicates a snowmobile fits within this 

definition of a vehicle. A snowmobile is a device upon which 

a person or property may be transported upon a public highway 

under certain conditions. Lt is not driven by animal power 

and does not utilize stationary rails or tracks. It also 

does not fit within the definition of a bicyc!e, the only 

device excluded from Title 61, Chapter 8, part 4, as deiined 

in S 61-1-123, MCA. 

We note however, that snowmobiles are not defined in 

Title 61, Chapter 8, part 1, although other types of vehicles 

are specifically defined therein. Instead, snowmobiles are 

defjned as follows: 
"Snowmobile" incl-udes any selF-propelled 

vehicle of an overall width of 48 inches 

or less, excluding accessories, designed 

primarily for travel on snow or ice, 

which may be steered by skis or runners 

and which is not otherwise registered or 

licensed under the laws of the state of 

Montana. 

Section 23-2-601(10), MCA. Further, Title 23, Chapter 2, 

part 6, provides statutory regulation for the operation of 

snowmobiles on public streets and highways. Section 

23-2-631, MCA. Of particular note is S 23-2-632 (1) (b) , MCA , 

which makes the operation of a snowmobil.e upon a public 

street or highway unlawful while under the influence of 

intoxicating liquor or narcotics or habit-forming drugs. 

The general ru1.e of statutory construction commands 

t.hat the more specific statute shall control over the general 

statute. Section 1-2-10?, MCA. The legislature in enacting 

Title ?3, Chapter 2, part 6, duplicated with specificity the 

motor vehicle code concerns for regulation of snowmobiles 

upon the public streets, roadways, and highways. Viewing the 

foregoing provisions in conjunction with secti-ons which 

provide for registration, licensing, accidents, enforcement, 

penalties, and. disposition of fines and forfeitures, we find. 

the legislature provided a statutory scheme which supplants 

the motor vehicle code regarding snowmobil-es. 

The State, however, contends S 61-8-401, MCA, provides 

for criminal sanctions while Title 23, Chapter 2, part 6, 

provides for civil sanctions. As such, they are supplemental 

rather than conflicting and may be imposed for the same 

occurrence. See One Lot Emerald Cu-t Stones v. United States 

(1972), 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438. However, 

"the question whether a particular statutorily defined 

penalty is civil or criminal is a matter of statutory 

construction. " (Citations omitted. ) Uni ted States v. Ward 
(1980), 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.~d.2d 

742, 749. A court's determination of the proper statutory 

construction depends upon a determination of two issues: (1) 

whether the legislature expressly or impliedly labeled the 

penalty as civil or criminal, and (2) if the legislature has 

identified the penalty as civil, whether the statutory scheme 

is "so punitive either in purpose or effect as to negate that 

intention." Ward, 448 U.S. at 248-49. When making the 

second inquiry, "only the clearest proof could suffice to 

establish the unconstitutionality of a statute on such a 

ground." (Citations omitted.) Ward, 448 U.S. at 249. 

After consideration of the first level test in light of 

the statutes relevant to this case, we find clear legislative 

intent to impose a civil penalty for operating a snowmobile 

upon the streets or highways of this state while under the 

influence of drugs or alcohol. Section 23-2-642, MCA, 

clearly states that the penalty levied for violation of 

55 23-2-601 through 23-2-644, MCA, is a civil penalty. 

Examination of the legislative history of Title 23, Chapter 

2, part 6, shows this part originally provided that violation 

of any section of the act was considered a criminal 

misdemeanor, "punishable by fine or imprisonment or both" 

under the laws applying to persons owning or operating motor 

vehicles when the violation occurred on public highways. 

Section 53-1023, R.C.M. 1947 (1971). This penalty provision 

was amended by the 1974 legislature, to read a5 follows: 

53-1 023. Penalties. (1) A person who 

violates any provision of this act or a 

rule and regulation adopted pursuant 

thereto shall pay a civil penalty of not 

less than fifteen dollars ($15) nor more 

than five hundred dollars ($500) for each 

separate violation. 

(2) A person who will-fully violates any 

provision of thjs act or a rule or 
regulation adopted pursuant thereto shall 

pay a civil penalty of not less than 

fifty dollars ($50) nor more than one 

thousand dollars ($1,000) for each 

separate violation. 

The legislative history, however, fails to provide an 

explanation as to why the legislature changed the statute, 

thereby naming the penalty as civil rather than criminal. 

The civil label, however, wi1.l not always be 

clispositive. Allen v. Illi-nois (1986), 478 U.S. 364, 369, 

106 S.Ct. 2988, 2992, 92 L.Ed.2d 296, 304. F7e must also 

determine whether intent to provide a "civil, remedial 

mechanism" has instead resulted in sanctions so punitive as 

to constitute a criminal penalty. Ward, 448 I1.S. at 249. 

The United States Supreme Court has held that where a section 

exhibits "an intent to prohibit and to punish violations of 

state law . . . the sum it exacts [is] a penalty." United 

States v. Constantine (1935), 296 1J.S. 287, 295, 56 S.Ct. 

223, 227, 80 L.Ed. 233, 239. 

A conviction under 23-2-632(1) (b), MCA, will. result 

in a "civil penalty" of not less than $15 nor more than $500 

for each separate violation. Section 23-2-642 (2) , YCA. 

However, if a person willfully violates S 23-2-632(1) (b), 

MCA, they shall pay a civil penalty of not less than $50 nor 

more than $1,000 for each separate violation. Section 

23-2-642 (3) , MCA. 

This statutory penalty provision levies a fine upon the 

action of a snowmobile operator for violating certain 

provj-sions of state law. In Helwig v. ITnited States (1903), 

188 U.S. 605, 610-11, 33 S.Ct. 427, 429, 47 L.Ed. 614, 616, 

the United States Supreme Court found that where the law 

levies fines or forfeitures as punishment for a particular 

act, those fines or forfeitures constitute criminal 

penalti-es. Such penalties reflect the traditional. aims of 
punishment, retribution, and deterrence. Constantine, ?96 

U.S. at 295. Furthermore, we note that S 23-2-644, MCA, 

provides that while the penalties collected are to be applied 

to a special revenue account for snowmobile safety and 

education, any penalties collected in justice court are 

applied to the traditional funds to which criminal fines are 

applied. 

Our review of the statutory scheme and its attendant 

penalties leads us to conclude the penalties provided in 

S 23--2-642 (2) and (3), MCA, are puniti~~e in nature and 

constitute criminal penalties. 

Having found that the statutory scheme supplants rather 

than supplements the motor vehicle code, it is incumbent that 

we affirm the District Court's decision that Delap could not 

he charged under 5 61-8-401, MCA, for operating a snowmobile 

upon public streets and highways while under the influence of 

alcohol. To hold otherwise would contradict a basic rule of 

statutory construction, 5 1-2-102, MCA, and would provide 

conflicting criminal penalties for the same act. 

The State also contends in its brief that the District 

Court's dismissal of the S 23-2-631, MCA, charge against 

Delap was erroneous. While we find merit in the state'^ 

argument on this charge, we unfortunately find this issue is 

not properly before this Court. The State in filing its 

notice of appeal designated that it was appealing the 

dismissal of the S 61-8-401, MCA, charge from the November 

17, 1988, order of the District Court. Rule 4(c), 

M.R.App.P., provides a notice of appeal "shall designate the 

judgment, order or part thereof appealed from." The State 

designated a part of the order for appeal, and we will not 

now consider an appeal from any other part of the order. We 

set forth the foregoing analysis of the 5 23-3-631, MCA, 

charge simply for guidance purposes. 
The order of the Distri.ct Court is affi 

\ 

We concur: / 
Mr. Justice R. C. Mcnonough dissents: 

A legislative body may impose both criminal and civil 

sanctions for the same occurrence. See One Lot Emerald Cut 

Stones v. United States (1972), 409 1T.S. 232, 93 S.Ct. 489, 

34 L.Ed.2d 438. That has been d-one here in explicit terms. 

The majority uses the incorrect premise that the two 

statutes are inconsistent in order to reach its conclusion 

that the specific prevails over the general in arriving at 

the intention of the legislature under § 1-2-102, MCA. The 

two statutes are not inconsistent. One is criminal, one is 

civil, serving different purposes and requiring different 

burdens of proof. Each is part of a separate body of lacnr; 

each has a different method of enforcing sanctions and 

establishes a different punishment. The majority expresses 

puzzlement with the 19?4 amendments to the snowmobile 

statutes, noting that the legislative history fails to 

explain why the legislature changed the penalty from criminal 

to civil. However, before resorting to legislative history, 

it should be noted that the change made by the legislature in 

1974 on its face resolved any conflict that may have existed 

with the Motor Vehicle Code. 

The majority cites the U.S. Supreme Court decision in 

Helwig v. United States (1903), 188 U.S. 605, 23 S.Ct. 427, 

47 L,.Ed. 614, for the proposition that where a law levies a 

fine or forfeiture as punishment for a particular act, that 

fine constitutes a criminal penalty. This is a misreading of 

the Helwig case. Helwig dealt with an importer of wood pulp 

who had undervalued his shipment for the purposes of avoiding 

customs fees. Upon discovery of the undervaluation, the 

Federal Government required Helwig to pay the difference 

between the fee he was charged and the fee he should have 

been charged. Because Helwig ' s shipment was undervalued by 
more than lo%, he was also assessed what the customs statutes 

termed an "additional fee" based on the percentage of the 

undervaluation. Helwig was brought before a U.S. Circuit 

Court for trial, as provided for in customs law. He objected 

to jurisdiction by claiming that the "additional fee" was in 

fact a penalty, and district courts by statute had exclusive 

jurisdiction in cases involving a penalty or forfeiture. The 

dispute was thus about jurisdiction under customs law. The 

Supreme Court found the additional fee to be a penalty, but 

the word "criminal" appears nowhere in the opinion. 

In any event, the civil sanctions or penalties in this 

case are not so punitive as to constitute criminal penalties. 

The civil penalties in the snowmobile statutes are roughly 

equal to the criminal penalties in the Motor Vehicle Code 

insofar as monetary sanctions are concerned, but this does 

not make them criminal. There are numerous cases where civil 

monetary sanctions have actually exceeded criminal monetary 

sanctions; e .g. , criminal fraud and punitive damages for 

fraud, antitrust penalties, and civil forfeiture of property 

deemed to be contraband. Jn this case, by saying the civil 

sanctions are punitive and criminal in nature, the majority 

is converting a designated ci~7iJ. statute into a criminalstatute even though the regular criminal statute levies more 

severe penalties, such as incarceration. The majority then 

applies it as a specific criminal statute to overrule a more 

general criminal statute when there is no fundamental 

inconsistency between the two. T would reverse and remand 

for trial on the criminal charge.