No. 85-495 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

IN THE MATTER OF THE APPEAL OF: GERALD LEE HORTON FROM A REVOCATION OF HIS DRIVER'S LICENSE, Appellant,

STATE OF MONTANA, Respondent.

APPEAL FROM: DistrictCourtof the ThirteenthJudicial District, In and for the Countyof Yellowstone, The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD: For Appellant: Morin & Collins; RobertP. Morinargued, Billings, Montana. ForRespondent: Hon. Mike Greely, Attorney General, Helena, Montana Barbara Claassenargued, Asst. Atty. General, Helena HaroldF. Hanser, CountyAttorney, Billings, Montana DavidW. Hoefer, Deputy CountyAttorney, Billings

Submitted: March 14, 1986 Decided: April 30, 1986

Filed:

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ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court. TheDepartment of Justice,Motor Vehicle Division (division) revoked for oneyear the d.river1s license of Gerald Lee Horton (petitioner)

# . On appeal, the Yellowstone County District Court affirmed the one year revocation. Petitioner

now appeals to this Court contending the suspension should have been for six months. We affirm. The issues are: I.. Does S 61-5-208(2)

## ,MCA, require a one year license revocation when an individual incurs a blood alcohol concentration (RAC)violation within fiveyears of a driving under the influence (DUI)violation? 2. Is § 61-5-208(2)

## ,MCA, void forva-gueness? In August 1983, petitioner was convicted of DUI in violation of 5 61-8-401, PICA. In November 1984, petitioner

was convicted of a BAC violation under S 61-8-406, MCA. Under 5 61-5-208(2), a second offense within five years of the first offense requires the division to revoke a license for a period of one year. The division concluded that the DUI conviction was the first offense and the BAC conviction

was a second offense, and therefore revoked petitioner

### 's license for one year. I Does § 61-5-208(2),MCA, require a one year revocation when an individual incurs a BAC violation within five years of a DUIviolation? Section 61-8-401(1), lists four separate and distinct ways in which a personmay be found DUI:
61-8-401. Personsunder the influence of alcohol or drugs. (1) It is unlawfiz and punishable as provided in 61-8-714 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;

(b) a narcotic drug to drive or be in actual physical control of a vehicle within this state;

(c) any other drug to a degree which renders him incapableof safely driving a vehicle to drive orbe in actualphysical control of a vehicle within this state; or

(d) alcohol and any drug to a degree that renders him incapable of safely driving a vehicle to drive or be in actual physical control of a vehicle within this state. Section 61-8-406,describes a BAC violation as follows:
61-8-406. O~erationof vehicle bv a person with afcohol concentration

### -- of 

## b. ld or more. It is unlawful and punishable 

## -- asprovided in 61-8-722 for anyc person to drive orbe in actualphysical control of a vehicle upon the ways of this state open to the public while the alcohol concentration in his blood, breath, or urine is 0.10 ormore. Section 61-5-208(2) refers to offenses under $S 61-8-401(1) and -406, stating in pertinentpart: [Wlhen any person is convicted 

# ... for the offense of operating or being in actual physical control of a motor vehicle while under the influence of alcohol or a narcotic drug or knowingly or willingly under the influence of any other drug to a degree which renders him incapable of safely driving a motor vehicle, or a combination thereof, 

### - or 

### - for 

## - the offense of operation 

### - of 

### - a motor vehicle bv a ~erson with alcohol concentrationof A-L- 

### - 0.10 or more, the division shall, upon --- receivinq a report of such conviction

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. suspend the-license or driving privilege of the person for a period of 6 months. Upon receiving a report of a conviction

# . . . for a second, third, or subsequent offense within 5 years of. the first offense, the division shall revoke the license or driving privilege of the person for a period of 1 

### year (emphasis added to underscore the 1983 amendment)

# .Prior to the 1983 amendment, the division was required to revoke a license for one year upon receiving notice of conviction of a second offense of driving under the influence of alcohol, or a narcotic drug, or any other drug, or alcohol and any other drug. While the offense of driving under the influence of alcohol is not necessarily the same as driving under the influence of a narcotic drug, or other drug, the convictions were treated the same for penalty purposes. In 1983 the statutewas amended by adding BAC as a fifth ground for suspensionor revocationof a license. In State ex rel. Palmer v. Hart (1982), 201 Mont. 526, 655 P. 2d 965, we pointed out that in construing legislation, the function of this Court is to state the substance of the legislation, and where the language of the statute is plain, unambiguous,and direct, the statute speaks for itself. Petitioner argues that one BAC plus one DUI is not equal to a second offense. He maintains that it isunreasonable to construe DUI and BAC as synonymous because a DUI conviction is a distinct criminal offense from a BAC conviction. The State points out that we are here concerned with the civil penalty of license revocationand that for license revocation purposes DUL and BAC are synonymous. We agree with the State's contention. It is true that the criminal statutesdefining DUI and BAC are different,and properly so, because the offenses are not identical. Here, however, we are not concerned with the criminal aspect of these statutes but only with the civilpenalty of revocation of a driver's license. Section 61-5-208(2) is plain, unambiguous and certain in providing that a BAC conviction following a DUI conviction, whether under the influence of alcohol,narcotic drug,other drug, or combinationof alcohol and drugs, results in a license revocation for one year. Wedo not find any contradiction in thoseprovisions. Operation of a motor vehicle with an alcohol concentration of 0.10 or more is clearly similar in nature to the offense of driving under the influence of alcohol. As pointed out by the District Court, the effectiveness of an enhanced sanction would be lost if petitioner's interpretation were accepted. An offender could avoid the increased sanctionmerely by pleading guilty to an alternate offense. Clearly, the legislature did not intend that result. We hold that § 61-5-208(2),MCA,properly requires a one year license revocation when an individual is convicted of a BAC violationwithin five years of a DUI conviction. I1 IsS 61-5-208(2),MCA,void forvagueness? As previously discussed, the statute is not ambiguous and certainly is not vague. It clearly lists the type of offenses whichmay be the basis for a licenserevocation. We hold that the statute is notvoid for vagueness. We affirm.

We Concur: 

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