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: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morin & Collins; Robert P. Morin argued, Billings, 

Montana. 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen argued, Asst. Atty. General, Helena 

Harold F. Hanser, County Attorney, Billings, Montana 

David W. Hoefer, Deputy County Attorney, Billings 

Submitted: March 14, 1986 

Decided: April 30, 1986 

Filed: 

AF ki JQ 1986 

a *,L * 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The Department of Justice, Motor Vehicle Division (division) revoked for one year 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 five years of a driving under 

the influence (DUI) violation? 

2. Is § 61-5-208 (2) , MCA, void for va-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 DUI violation? 

Section 61-8-401(1), lists four separate and distinct 

ways in which a person may be found DUI: 

61-8-401. Persons under 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 incapable of safely driving a 

vehicle to drive or be in actual physical 

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~eration of vehicle bv a 

person with afcohol concentration -- of b. ld 

-- or more. It is unlawful and punishable 

as provided in 61-8-722 for anyc person to 

drive or be in actual physical 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 or more. 

Section 61-5-208 (2) refers to offenses under $S 

61-8-401(1) and -406, stating in pertinent part: 

[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 

A-L- bv a ~erson with alcohol concentration - of 

--- 0.10 or more, the division shall, upon 

receivinq a report of such conviction . . . 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 statute was amended by adding BAC as a fifth ground 

for suspension or revocation of 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 is unreasonable 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 revocation and that for license revocation 

purposes DUL and BAC are synonymous. 

We agree with the State's contention. It is true that 

the criminal statutes defining 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 civil penalty 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 combination of alcohol 

and drugs, results in a license revocation for one year. We 
do not find any contradiction in those provisions. 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 sanction merely 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 violation within five years of a DUI conviction. 

I1 

Is S 61-5-208(2), MCA, void for vagueness? 

As previously discussed, the statute is not ambiguous 

and certainly is not vague. It clearly lists the type of 

offenses which may be the basis for a license revocation. We 

hold that the statute is not void for vagueness. 

We affirm. 

We Concur: 

</ ~-i[l,$..~ Chief Justice