No. 86-245 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE SUSPENSION OF 

THE DRIVER'S LICENSE OF WAYNE BLAKE, 

Petitioner and Respondent, 

-vsSTATE OF MONTANA, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kimberly A. Kradolfer, Asst. Atty. General, Helena 

Tom Scott, County Attorney, Dillon, Montana 

For Respondent: 

Max A. Hansen, Dillon, Montana 

Submitted on Briefs: Feb. 19, 1987 

Decided: March 30, 1987 

MAR :! 0 IS87 

Filed: 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The State appeals an order of the Beaverhead County 

District Court granting Blake's petition for a provisional or 

restricted driver's license based upon hardship factors. The 

issue on appeal is whether a provisional or restricted 

license may be granted upon hardship factors. We affirm in 

part and reverse in part. 

This is the second appeal of this action, the Court 

having previously taken up the case in Matter of Suspension 

of Driver's License of Blake (Mont. 1986), 712 P.2d 1338, 43 

St.Rep. 143 (hereafter Blake I). 

On October 10, 1984, Blake attended a club meeting in 

Dillon, Montana. After the business meeting, most of the 

members played cards and socialized. Blake admitted drinking 

four or five beers that night. Blake and a fellow club 

member, Parker, were the last members to leave the meeting. 

They drained several prater pipes and locked the building 

before getting into their cars to drive home between 1:30 

a.m. and 2:00 a.m. 

Blake traveled north on Montana Street through downtown 

Dillon with Parker following. A police officer was driving 

south on Montana Street when he observed Blake driving 

erratically. The officer testified that Blake swerved in and 

out of his driving lane numerous times. Parker testified 

that Blake swerved just once. Blake claimed he swerved to 

avoid a pedestrian; however, neither the officer nor Parker 

claimed to see a pedestrian. The officer stopped Blake and 

administered several field sobriety tests, none of which were 

performed successfully. Blake was arrested for driving under 
the influence of alcohol and was taken to the police station 

where he refused to take a breathalyzer test. The officer 

seized Blake's driver's license and the State subsequently 

suspended Blake's driving privileges for 90 days. 

Blake appealed the suspension to District Court 

alleging the police lacked reasonable grounds (under 

$ 61-8-402, MCA) to believe he had been driving a vehicle 

while under the influence of alcohol. The trial judge held 

that : (1) the initial stop was illegal for the police 

lacked reasonable grounds to believe that Blake was operating 

a motor vehicle while under the influence of alcohol prior to 

the time Blake was stopped, and (2) since the initial stop 

was illegal, Blake's driver's license should not have been 

suspended. The State's motion for rehearing was denied, the 

trial judge holding to his belief that the officer was not 

justified in making the investigatory stop. 

On appeal we found that the trial judge failed to 

address the issues provided under the statute granting the 

appeal ($ 61-8-403, MCA). We held that the police officer 

had apparently met the statutory requirements by proving: (1) 

reasonable grounds to believe Blake was driving under the 

influence of alcohol, (2) that Blake was placed under arrest, 

and (3) that Blake refused to submit to the breathalyzer 

test. Blake I, 712 P.2d at 1341. We concluded that the 

District Court should have disposed of the case based upon 

the requirements of S 61-8-403, MCA, and we intended to 

remand to the lower court for findings on that basis but 

instead we stated " [w] e remand the case for further hearings 

on whether the petitioner should be granted a restricted 

driving permit." Blake I, 712 P.2d at 1341. 
The trial judge interpreted this statement as a 

judicial broadening of § 61-8-403, MCA, from a three part to 

a four part test so as to encompass the hardship aspects of a 

particular case: 

The Supreme Court remanded this cause for 

findings as to the following: 

1. Did the officer have reasonable 

grounds to believe petitioner had been 

driving a motor vehicle while under the 

influence of alcohol? 

2. Whether or not the petitioner was 

placed under arrest? 

3. Whether the petitioner refused to 

submit to a blood alcohol test? 

4. Whether petitioner should be granted 

a restricted driving permit? 

The issues have been briefed and 

submitted. From the record, the Court 

makes the following: 

FINDINGS OF FACT 

1. Following the stop, the officer had 

reason to believe petitioner had been 

driving while under the influence of 

alcohol ; 

2. Petitioner was placed under arrest; 

3. Petitioner refused to take a blood 

alcohol test; 

4. Petitioner's driving privileges were 

suspended by the Motor Vehicle Division 

under section 61-8-402 on October 14, 

1984, and [the license] was returned 

pursuant to an order of this Court on 
December 1, 1984. He was without a 

license a total of 48 days. 

5. The companion criminal action in the 

Dillon City Court charging the petitioner 

with driving while intoxicated was 

dismissed on motion of the City on April 

15, 1985. 

6. The records show without dispute that 

petitioner is by occupation a truck 

driver and the sole support of a young 

family consisting of a wife and two small 

children. Without a driver's license he 

would be without employment, and his 

family would in all probability become a 

public charge. 

From his reading of Blake I, the trial judge concluded that 

Blake was entitled to a provisional or restricted driver's 

license for employment purposes for the remaining 42 days of 

the suspension: 

The summary suspension of the 

petitioner's driving privileges on 

October 14, 1985 was under the statute, 

as interpreted by the Supreme Court in 

this cause, proper and is hereby 

affirmed. Petitioner is given credit for 

48 days on the summary 90-day suspension. 

The Court's previous stay order is 

vacated. 

That pursuant to the Supreme Court's 

mandate herein, the Court finds that the 

petitioner is entitled to an appropriate 

provisional or restricted driver's permit 

for the balance of 42 days of his 

suspension. The restricted license shall 

be on such reasonable terms and 
conditions as the Motor Vehicle Division 

shall impose consistent with the spirit 

and intent of this order; to restrict his 

operation of a motor vehicle during the 

remaining period of the suspension to the 

driving necessary in the course of his 

employment. 

The suspension or revocation of a driver's license is a 

civil proceeding. Lancaster v. Dept. of Justice (Mont. 

suspension of driving privileges serves the purpose of 

protecting the unsuspecting public. In Re France (1966), 147 

Mont. 283, 411 P.2d 732. 

We recently discussed what is commonly called the 

implied consent statute in Matter of Orman (~ont. 19861, 

P.2d -1 - , 43 St.Rep. 2228, 2230. 

Section 61-8-402, MCA, in substance 

provides that any person who operates a 

vehicle upon the roads of this state 

shall be deemed to have given consent to 

a chemical test of his breath for the 

purpose of determining the alcoholic 

content of his blood if arrested by a 

police officer for driving under the 

influence of alcohol. 

Subsections (3) and (5) (a) of S 61-8-402, MCA, read as 

follows: 

(3) If a resident driver under arrest 

refuses upon the request of a peace 

officer to submit to a chemical test 

designated by the arresting officer as 

provided in subsection (1) of this 

section, none shall be given, but the 

officer shall, on behalf of the 

department, immediately seize his 

driver's license. The peace officer 

shall forward the license to the 

department, along with a sworn report 
that he had reasonable grounds to believe 

the arrested person had been driving or 

was in actual physical control of a 

vehicle upon ways of this state open to 

the public, while under the influence of 

alcohol and that the person had refused 

to submit to the test upon the request of 

the peace officer. Upon receipt of the 

report, the department shall suspend the 

license for the period provided in 

subsection (5) . 

(5) The following suspension and 

revocation periods are applicable upon 

refusal to submit to a chemical test: 

(a) upon a first refusal, a suspension 

of 90 days with no provision for a 

restricted probationary license. 

(Emphasis added.) 

As we stated in Orman, P.2d at , 43 St.Rep. at 

Section 61-8-403, MCA, controls the 

appeal from the suspension of a license 

to the district court and in part limits 

the issues to be considered bv the court 

as follows: 

". . . the court shall take testimony and 

examine into the facts of the case, 

except that the issues shall be limited 

- to whether a peace officer had reasonable 

grounds to believe the person had been 

driving or was in actual physical control 

of a vehicle upon ways of this state open 

to the public, while under the influence 

of alcohol, whether the person was placed 

under arrest, and whether such person 

refused to submit to the test. The court 

shall thereupon determine whether the 

petitioner is entitled to a license or is 
subject to suspension as heretofore 

provided." (Emphasis added.) 

The function of this Court is simply to ascertain and 

declare what in terms or in substance is contained in the 

statutes and not to insert what has been omitted. Matter of 

Estate of Baier (1977), 173 Mont. 396, 567 P.2d 943. Where 

the language of a statute is plain, unambiguous, direct, and 

certain, the statute speaks for itself. State ex rel. Palmer 

v. Hart (1982), 201 Mont. 526, 655 P.2d 965. Section 

61-8-402, MCA, is patently clear that when a police officer 

has reasonable grounds to believe a person was driving or in 

actual physical control of a vehicle while under the 

influence of alcohol and the person refuses to take a 

chemical test, the State shall automatically suspend that 

person's driver's license for 90 days upon first refusal. 

More importantly, the statute explicitly states that the 

driver will not be entitled to a restricted probationary 

license. This Court is not at liberty to make additions to a 

statute, for to do so would interfere with the domain of the 

legislature. 

As we said in Orman, the driver has the right to appeal 

the suspension to the District Court under § 61-8-403, MCA. 

The statute limits the inquiry to: (1) whether the police 

officer had reasonable grounds to believe the person had been 

driving or was in actual physical control of a vehicle upon 

ways of this state open to the public, while under the 

influence of alcohol, (2) whether the person was placed 

under arrest, a.nd (3) whether such person refused to submit 

to the test. 

Section 61-8-403, MCA, does not grant authority to the 

trial. judge to consider the issue of hardship as a mitigating 
factor and does not give the judge the authority to grant a 

restricted or probationary driver's license. The final 

sentence in the statute reads: "The court shall thereupon 

determine whether the petitioner is entitled to a license or 

is subject to suspension as heretofore provided." This means 

that a court must determine if the license suspension was 

proper under the three part test of cS 61-8-403, MCA. On 

remand, the District Court did apply the three part test and 

found that Blake's license was properly suspended. We affirm 

the District Judge's application of the test and his decision 

to suspend Blake's driving privileges. We reverse his 

decision that Blake be granted a provisional or restricted 

license for employment purposes. 

Affirmed in part, reversed in part. 

I 

We concur: 

Justice A( 
Mr. Justice John C. Sheehy, dissenting: 

In this case Wayne Blake is guilty of - no crime. The 

purported charge against him was dismissed on the motion of 

the city, an admission by the City that it had no evidence 

upon which it could convict Blake. Is it then lawful that a 

guiltless citizen can be deprived of a valuable property 

right, his driver's license, merely on the unfounded 

suspicion of a law enforcement officer? Certainly not, or I 

should say, certainly not in a country that asserts that 

life, liberty and the pursuit of happiness are inalienable 

rights. 

This Court erred in its holding in Blake I (1986), 712 

P.2d 1338. Unable to admit its error, this Court compounds 

its error by insisting that an innocent man be further 

punished. To paraphrase Goldsmith, "Woe to the land, to 

hastening ills a prey, where courts contribute to the law's 

decay. " 

aJustice 

I concur with the foregoing dissent of Mr. Jptice John C . Sheehy . 
Mr. Justice L. C. Gulbrandson, special response to dissent. 

In response to the dissent of Justice John C. Sheehy, 

concurred in by Justice William E. Hunt, Sr., it should be 

pointed out that in the first sentence of his dissent filed 

in Blake I (Mont. 1986), 712 P.2d 1338, 1342, he acknowledges 

as follows: 

Proceedings to suspend the driver's 

license of one who refuses to submit to a 

chemical test designated by the arresting 

officer (section 61-8-402, MCA) and the 

right of appeal granted such driver 

(section 61-8-403, MCA) are civil in 

nature. 

It should be further noted that the companion criminal 

action was dismissed on motion of the City Attorney in 

writing as follows: 

After checking with the Supreme Court in 

Helena, Montana, I am convinced that we 

will not get a decision in the Blake case 

on probable cause for another six to nine 

months. Therefore, I feel that you 

should dismiss the D.U.I. charges pending 

against Mr. Blake in your Court. 

Robert G. Dwyer 

City Attorney 

April 15, 1985, Charge Dismissed as per 

above letter from Atty. Dwyer 

Judge Delaney 

[City Police Judge] 

In my view, the City Attorney's motion was appropriate 

in view of the requirement that the State must bring the 

defendant to trial within six months, and said motion should 

not be characterized as an admission that there was no 

evidence with which to convict the defendant.