NO. 93-175

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

LARRY WAYNE THOMPSON,

Plaintiff and Appellant,

-vTHE DEPARTMENT OF JUSTICE,

DRIVERS LICENSE BUREAU,

Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Douglas G. Harkin, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard R. Buley, Tipp & Buley, Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Brenda

Nordlund Assistant Attorney General, Helena,

Montana: Robert L. Deschamps, III, Missoula County

Attorney, Betty Wing, Deputy Missoula County

Attorney, Missoula, Montana

.?

Submitted on Briefs: January 27, 1994

Decided: March 24, 1994

@lerk
Justice Fred J. Weber delivered the Opinion of the Court.

Appellant Larry Wayne Thompson (Thompson) appeals the order of

the District Court of the Fourth Judicial District, Missoula

County, which suspended Thompson's driver's license for a period of

ninety days. We affirm the order of the District Court.

The sole issue for review is whether the District Court erred

in suspending Thompson's license for ninety days.

Thompson was arrested on October 14, 1992, for allegedly

driving under the influence of alcohol. The highway patrol officer

who stopped him conducted a number of field sobriety tests before

bringing him to the jail. When Thompson refused to take a

breathalyzer test at the jail, the officer took his driver's

license and submitted it to the Department of Justice's Drivers'

License Bureau (the Department), along with a statement that the

officer had reasonable cause to believe Thompson was driving under

the influence of alcohol.

On October 16, 1992, Thompson filed a petition in District

Court to review his license suspension. Neither the County

Attorney's Office nor the Department were served with a copy of the

petition and neither was notified in any manner of the filing of

the petition. The District Court issued an order on October 27,

1992, ordering the Department to restore the petitioner's driving

privileges for employment purposes pending a hearing. Thompson did

not set the petition for hearing or give notice. Following the

acquittal of Thompson in the Justice Court, on February 10, 1993,

the County Attorney requested a hearing on the petition of Thompson

2
which had been filed on October 16, 1992. Following the hearing on

March 2, 1993, the District Court determined that the arresting

officer had reasonable belief Thompson was driving under the

influence of alcohol and the court suspended Thompson's license for

ninety days.

At the District Court hearing the arresting officer was the

only witness to testify. In the course of the cross examination by

Thompson's counsel, the following questions and answers were given:

Q. . . . Officer Palmer, I'm handing you what's been

marked as Defendant's Exhibit "A." Is that the refusal

affidavit which you would have submitted to the Driver's

License Bureau or a copy of it?

A. Beside the obvious thing up in the corner, it

appears to be, yeah.

Q. Is that your signature?

A. Yeah.

. . .

MR. BDLEYZ Obviously, it also contains a photocopy of

Mr. Thompson's driving license.

The Exhibit "A" was admitted without objection. In oral argument

following the conclusion of the officer's testimony, Thompson's

counsel argued that Thompson's driver's license could not be

suspended unless there was a sworn report as required under 5 61-S402(3), MCA. Counsel argued that Thompson's Exhibit "A" shows that

the report which was submitted to the Driver's License Bureau is

not sworn and that as a result there was no authority to suspend

the license in the first instance.

The court inquired if this was a new issue which Thompson was

raising and if the absence of proof of a sworn statement had to be

3
considered in this proceeding. The court then inquired if this

document had been received from Helena and Thompson's counsel

advised that it had been obtained from the County Attorney's

Office. The court pointed out that there was no way to know if it

was the same as the form submitted to the Motor Vehicle Division.

The court further inquired if Thompson had notified the county that

this was an issue and was advised that he had not so notified the

county. The District Court then determined that it would not

consider the issue.

Section 61-S-402, MCA (1991), provides in pertinent part:

(3) If a driver under arrest refuses upon the

request of a peace officer to submit to a test designated

by the arresting officer as provided in subsection (1)

[relating to blood, breath or urine], non 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, drugs, or a combination of the two, 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). (Emphasis supplied.)

Subsection (5) provides for a suspension of ninety days with no

provision for a restricted probationary license upon a first

refusal to submit to blood, breath or urine testing.

Thompson contends that as a condition precedent to any

suspension of his license, the arresting officer was required by

statute to submit a sworn report to the Department. The District

Court relied on § 61-8-403, MCA (1991), for its decision not to

address this issue. Section 61-8-403, MCA (1991), provides in

4
pertinent part:

. . . [t]he 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,

drugs, or a combination of the two, 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.

Thus, according to the above-quoted statute, the District Court was

limited in the issues which it could address at the hearing.

The District Court entered its Findings of Fact, Conclusions

of Law and Order on March 3, 1993, determining that (1) the

arresting officer had reasonable grounds to believe that Thompson

was driving a motor vehicle upon a public way while under the

influence of alcohol: (2) that he had been placed under arrest; and

(3) that Thompson refused to take the requested breath test. In

Gebhardt v. State (1989), 238 Mont. 90, 95, 775 P.2d 1261, 1265,

this Court pointed out that a hearing held under the statute

regarding suspension of license--as in the present case--is a civil

proceeding, and that such civil proceeding is separate and distinct

from a criminal trial on the charge of operating a motor vehicle

while under the influence of alcohol. As a result, the

determination in Justice Court that Thompson was acquitted of

driving under the influence is not a factor to be considered in the

present case.

The District Court's jurisdiction in this case was limited by

5 61-s-403, MCA (1991). In Blake v. State (1987), 226 Mont. 193,

5
198, 735 P.2d 262, 265, we stated:

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. . . .

Where the language of a statute is plain, unambiguous,

direct, and certain, the statute speaks for itself. . .

. 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. (Citations omitted.)

The District Court concluded that under 5 61-8-403, MCA

(1991) and Blake r -I the court was required to determine if the

officer had reasonable grounds to believe the person was driving

the vehicle while under the influence of alcohol, whether the

person was placed under arrest, and whether the person refused to

submit to the test. The District Court concluded those were the

only issues which it could properly determine.

We conclude that the District Court was correct in its

limitation of the issues to those above described. We further

conclude that the uncontradicted evidence supports the conclusion

reached by the District Court.

With regard to the issue raised by Thompson as to the filing

of the sworn report with the Department, we affirm the conclusion

of the District Court that it should not consider that issue. We

emphasize that neither the Department nor the County Attorney's

Office was given notice of the filing of the petition by Thompson.

In a similar manner, no notice was given to the State or County

Attorney's Office that Thompson was raising an issue as to the

filing of the proof of the sworn statement. As a result, neither

6
the County Attorney's Office nor the Department had the opportunity

to present the actual report which was received by the Department

to refute the contentions of Thompson. We conclude that the sworn

report issue was neither properly raised nor presented.

We affirm the District Court order of suspension of Thompson's

license.

We Concur: A<'

Justices
Justice William E. Hunt, Sr., dissenting.

I dissent from the opinion of the Court.

The majority follows the District Court's reasoning that at

the hearing on petitioner's petition, he attempted to raise a new

issue regarding proof of a sworn statement from the arresting

officer. The majority concludes that the court rightly limited

consideration of the officer's statement, pursuant to § 61-8-403,

MCA (1991). Further, the majority, in effect, says that petitioner

was obliged to notify both the county attorney and the Department

of Justice of his petition before presenting evidence at the

hearing that the officer had not filed a sworn statement along with

petitioner's driver's license, with the Driver's License Bureau.

I cannot agree.

Petitioner did not raise a new issue by offering this evidence

at the hearing. While the District Court correctly relied on

§ 61-8-403, MCA (1991), for a determination of the appropriate

scope of inquiry in a driver's license suspension appeal,

Exhibit "A" was certainly within that scope. Section 61-8-403, MCA

(1991), provides in part:

[T]he 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 qrounds

to believe the person had been drivinq . . . and whether

such nerson refused to submit to the rsobrietv] test.

[Emphasis added].

The issue of whether the peace officer's initial statement

contained reasonable grounds to believe petitioner was under the

influence of alcohol and/or drugs and refused to submit to a

8
sobriety test is supported directly by the veracity of that

statement.

[Rleasonable grounds exist if the facts and circumstances

within the personal knowledge of the arresting officer

would be sufficient to warrant a reasonable person to

believe that the motorist is under the influence of

alcohol.

Boland v. State (1990), 242 Mont. 520, 524, 792 P.2d 1, 3 (citing

Gebhardt v. State (1989), 238 Mont. 90, 97, 775 P.2d 1261, 1266).

The probable cause inquiry allowed in § 61-8-403, MCA (1991), and

the requirement in § 61-8-402(3), MCA (1991), that the officer file

a "sworn report", necessarily involve one issue--whether the peace

officer truly had reasonable grounds to make the arrest. The

statutes must be read together. The purpose of the officer's sworn

statement requirement under Montana's implied consent law,

6 61-8-402, MCA (1991), is to assure that an officer is accountable

for assertions that there is a particularized suspicion of

wrongdoing, and in particular, reasonable grounds to believe that

the arrestee had been driving or was in actual physical control of

a vehicle upon "ways of this state open to the public,l' and that

the person refused to submit to one or more sobriety tests.

The majority cites Blake v. State (1987), 226 Mont. 193, 735

P.2d 262, for the proposition that:

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.

Where the language of a statute is plain, unambiguous,

direct, and certain, the statute speaks for itself.

[Citations omitted].

9
Blake, 735 P.2d at 265. In keeping with this rule, we should not

turn a blind eye to the language in 5 61-8-402(3), MCA (1991),

which requires a peace officer to forward the driver's license to

the Driver's License Bureau with a sworn statement that he had

reasonable grounds to believe the arrested person had been driving

or was in actual physical control of a vehicle while under the

influence of alcohol and/or drugs. To ignore this requirement is

to ignore our own dictate that we should declare the terms or

substance of the statutes and not to insert language that would

allow a peace officer to forward a sworn statement only at his own

discretion. Petitioner did not attempt to raise a new issue

regarding proof of a sworn statement from the arresting officer,

and the court improperly limited consideration of the officer's

written statement, pursuant to § 61-8-403, MCA (1991).

As pointed out by the majority, Exhibit "A" was admitted

without objection. The District Court abused its discretion when

on its own motion it ruled that petitioner's evidence lacked

competency and refused to consider it. The State carried the

burden of objecting to the competency of petitioner's Exhibit "A1'

on the grounds that petitioner had not presented the best evidence.

By not preserving its objection, the State waived objection of the

evidence on appeal. Rule 103(a)(l), M.R.Evid. The effect of the

majority's opinion is to reverse the burden of proof in a civil

hearing. The decision alleviates the State's responsibility to

comply with the directives of § 61-8-402, MCA (1991), and puts the

10
burden on a defendant to produce evidence that would prove that an

officer had complied with the statute.

Finally, the majority places the burden on petitioner to

notify both the county attorney and the Department of Justice of

his petition before presenting evidence at the hearing that the

officer had not filed a sworn statement, along with petitioner's

driver's license, with the Driver's License Bureau. Section

61-g-403, MCA (1991), states in pertinent part:

[The] court is hereby vested with jurisdiction and it

shall be its duty to set the matter for hearing upon

10 days' written notice to the county attorney of the

county wherein the appeal is filed and such county

attorney shall represent the state . . . .

Nowhere does the statute require petitioner to give notice to the

county attorney and the Department of Justice that he had filed a

petition to appeal the suspension of his driver's license.

According to the statute, the District Court was required to notify

the county attorney of the matter.

For these reasons I dissent from the opinion of the majority.

Justice Terry N. Trieweiler joins in the foregoing dissent.

11
Justice Terry N. Trieweiler dissenting.

I dissent from the majority opinion.

Section 61-8-403, MCA, allows any person whose license has

been suspended pursuant to 5 61-8-402, MCA, to petition the

district court for a hearing. The majority has concluded that the

district court can only resolve three issues at that hearing:

(1) whether the peace officer had reasonable grounds to believe

that the petitioner operated his vehicle under the influence of

alcohol; (2) whether the petitioner had been arrested: and

(3) whether the petitioner refused to submit to blood-alcohol

tests. However, the majority ignores the final sentence of

g 61-8-403, MCA, which provides that "[t]he court shall determine

whether the petitioner is entitled to a license or is subject to

suspension or revocation."

The last sentence of 5 61-8-403, MCA, necessarily requires

that the district court determine whether the petitioner's license

was properly suspended in the first place. The only procedure for

suspension of a driver's license under the circumstances which

exist in this case is provided for in § 61-8-402(3), MCA. That

section specifically requires that the officer who seizes a

driver's license for refusal to submit to a blood-alcohol test must

send the license with a sworn statement to the Department of

Justice and that the license shall not be suspended until "receipt

of the report . . . .'I Therefore, I conclude that in making the

determination which is required by § 61-8-403, MCA,--that is

whether petitioner's license was subject to suspension--the

12
District Court must necessarily decide whether the statutory

procedure provided as a prerequisite for suspension was followed.

In this case, based on the report which was admitted at the time of

petitioner's hearing without objection by the State, the correct

procedure was not followed.

The majority states that, because of lack of notice, neither

the County Attorney's Office nor the Department of Justice had an

opportunity to present the actual report. That would be of greater

concern if it was not the County Attorney who provided the copy to

petitioner in the first place, and if the District Judge had not

given the County Attorney an opportunity to call the officer back

to the stand in order to determine whether the copy admitted

conformed in all respects to the original. Based on my review of

the transcript, the County Attorney expressed no interest in

resolving that issue when given the opportunity to do so at the

time of the hearing.

For these reasons, I conclude, based on the record before us,

that petitioner's license was not properly suspended. I dissent

from the opinion of the majority and would reverse the judgment of

the District Court.

Just,ice Wi.lliam E. Hunt, Sr., joins in the foregoing dissent.

Justice

13
March 24, 1994

CERTIFICATE OF SERVICE

I hereby certify that the foilowing certified order was sent by United States mail, prepaid, to the

following named:

Richard R. Buley

Tipp & Buley

P.O. Box 3778

Missoula, MT 59806-3778

Hon. Joseph P. Mazurek, Attorney General

Peter Funk, Assistant

Justice Bldg.

Helena, MT 59620

Robert L. Deschamps, III, County Attorney

Betty Wing, Deputy

200 W. Broadway, Courthouse

Missoula, MT 59802

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA