No. 88-601

IN THE SUPREME COURTOF THE STATE OF MONTANA 1989

STATE OF MONTANA, Plaintiffand Appellant,-vsKEVIN LESLIE DELAP, Defendantand Respondent.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable JosephGary,Judgepresiding.

COUNSELOF RECORD:
ForAppellant:

Bruce E. Becker,CityAttorney, 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-nionof 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.sconvicted in City Court inBozeman, Montana,ofviolating § 

### 61-8-401,MCA,

### driving under the Infl.uence,and § 

### 23-2-631, MCA, 

### operatinga 

### snowmobileon 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 DistrictCourt noted thet the dismissal does notpreclude the State from charging Delap under 5 

### 23-2-632(1)(b), YCA, the snowmobileDUI statute. We affirm the order of 

### the District Court as to dismissalof 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 tobe .174. 

### After Delap was convicted in City Court of both offenses charged,he appealed andwas tried inDistrictCourt
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 Statepresents two issues on appeal: 1. Is a snowmobileavehicle 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 statewhile under the influence of alcohol? 2. Does the civil offense of driving a snowmobile while under the influence of alcohol in violation ofS 23-2-623 (1) (b) supersede and preclude charging a defendant under 

### 5 61-8-401, MCA? Delap was charged with violatingS 61-8-401, MCA. The pertinent part of this statuteprovides: Persons under the influenceof alcohol or d.rugs. (1)It isunlawful and punishable asprovided in 61-8-714 and 61-8-723 for any person who isunder the influence of: (a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this stateopen tothe public[.] Section 61-8-401(1) (a),MCA. As used in this statute, the termvehicle isdefined asfollows: "Vehicle" means every devicein, upon, or by which any person or property may be transported or drawn upon a public highway, except devices moved by animal power orused exclusivelyupon stationary rails or tracks. However, inchapters 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 asdefined in61-1-123. Section 61-1-103, MCA. Our reading of the plain language of this statute indicates a snowmobile fits within this definitionof a vehicle. A snowmobile isa deviceupon which

a person orpropertymay be transportedupon apublichighway under certain conditions. Ltis not driven by animal power and does not utilize stationary rails or tracks. It also does not fitwithin the definition of a bicyc!e, the only device excluded from Title 61, Chapter 8, part 4, as deiined inS 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-udesany 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.hatthemore 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-tStones

### v. United States

(1972),409U.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.) 

### United 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 "sopunitive either inpurpose or effect as tonegate 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." (Citationsomitted.) Ward, 448U.S. 

### at 249. After considerationof 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 thatviolation 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). Thispenalty provision

was amended by the 1974 legislature, to read a5 follows: 53-1023. 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 fivehundred dollars ($500)for each separate violation. (2) A person who will-fullyviolates any provision 

### of thjs act or a rule orregulation adoptedpursuant thereto shall pay a civil penalty of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) for each separateviolation. 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 thatwhere a section exhibits "an intent toprohibit and topunish 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 ina "civilpenalty" of not lessthan $15nor 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 shallpay a civilpenalty of not less than $50 nor
more than $1,000 for each separate violation. Section 23-2-642 (3)

## ,MCA. This statutorypenalty provision levies a fineupon 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 ofpunishment, retribution, and deterrence. Constantine, ?96 U.S. at 295. Furthermore, we note that S 23-2-644, MCA, provides that while the penalties collectedare 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 criminalpenalties. Having found that the statutory scheme supplants rather than supplements themotor 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 uponpublic streets and highwayswhile under the influence of alcohol. Tohold otherwisewould contradict a basic rule of statutory construction, 

### 5 1-2-102, MCA, and would provide conflicting criminalpenalties 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.ctCourt isaffi



### \

We concur: /Mr. JusticeR. 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-onehere 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 thatmay 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 constitutesa criminalpenalty. 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%,hewas also assessedwhat 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 courtsby statutehad exclusive jurisdiction in cases involving apenalty 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 criminalpenalties. 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 notmake 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 leviesmore severe penalties, such as incarceration. The majority then applies it as 

### a specific criminal statute to overrule amore general criminal statute when there is no fundamental inconsistency between the two. T 

### would reverse and remand for trial on 

### the criminal charge.