No. 85-615 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsMICHAEL KEVIN GEE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

Marty Lambert, Deputy County Attorney, Bozeman 

For Respondent: 

Bolinger & Foster; K. Robert Foster, Bozeman, Montana 

Submitted on Briefs: June 24, 1986 

Decided: August 11, 1986 

Filed: 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The State appeals from the order of the Gallatin County 

District Court granting Gee's motion to dismiss for lack of 

jurisdiction. 

We affirm. 

The issue on appeal is whether the District Court erred 

in granting Gee's motion to dismiss the charge against him of 

driving under the influence of alcohol, third offense, for 

lack of jurisdiction because he had only one prior DUI 

conviction as an adult. 

On March 7, 1981, Gee was charged with DUI in Gallatin 

County Justice Court. He pled guilty. Gee was 16 years old 

at the time. On May 9, 1982, Gee was charged with DUI in 

Bozeman City Court. He again pled guilty. He was 18 years 

old at that time. On December 19, 1984, Gee was arrested for 

DUI. An information was filed with the District Court 

charging Gee with driving under the influence of alcohol, 

third offense. 

The District Court granted Gee's motion to dismiss the 

information. The court based its order upon the language of 

§ 61-12-601, MCA. That statute states: 

(1) The district courts and the justices' courts 

of the state and the municipal and city courts of 

cities and towns shall have concurrent original 

jurisdiction in all proceedings concerning the 

unlawful operation of motor vehicles by children 

under the age of 18 years. 

(2) Whenever, after a hearing before the court, it 

shall be found that a child under the age of 18 

years has unlawfully operated a motor vehicle, the 

court may: 

(a) impose a fine, not exceeding $50, provided 

such child shall not be imprisoned for failure to 

pay such fine; 
(b) revoke the driver's license of such child, or 

suspend the same for such time as may be fixed by 

the court; and 

(c) order any motor vehicle owned or operated by 

such child to be impounded by the probation officer 

for such time, not exceeding 60 days, as shall be 

fixed by the court. However, if the court shall 

find that the operation of such motor vehicle was 

without the consent of the owner, then such vehicle 

shall not be impounded. 

In its order, the District Court stated: 

Under Montana law a minor who commits a vehicular 

offense, including the offense of DUI, is found to 

be guilty of unlawful operation of motor vehicles 

under 5 61-12-601, MCA. The minor is not found to 

be guilty of the principle offense charged. 

Since Gee's first offense was a violation of S 

61-12-601, MCA, the court found that Gee had only one prior 

conviction as an adult under $ 61-8-401, MCA. Therefore, 

Gee's current charge is DUI, second offense. The District 

Court lacks jurisdiction to hear a charge of DUI, second 

offense. State v. Heine (1976), 169 Mont. 25, 544 P.2d 1212. 

So the court granted Gee's motion to dismiss. 

The State makes two main arguments on appeal. First, 

that $ 61-12-601, MCA, is unconstitutionally vague as a 

criminal statute because it does not establish a crime, but 

merely provides the forum where other traffic crimes found in 

the Montana Code Annotated shall be prosecuted if a juvenile 

driver is involved, and the penalties that the court may 

impose. We disagree. The statute is not unconstitutionally 

vague for failure to adequately describe prohibited conduct. 

To determine what conduct is prohibited one must simply look 

to the principal traffic offense charged. That does not make 

the statute unconstitutionally vague. The Montana Youth 

Court Act, $ 41-5-101, et seq., MCA, is similar. A 

delinquent youth is defined at 5 41-5-103 (12), MCA, as a 

youth : 
(a) who has committed an offense which, if 

committed by an adult, would constitute a criminal 

offense. 

If a juvenile is charged with burglary, he is not found 

guilty of the offense charged, but is found to be a 

delinquent youth. In order to determine whether a juvenile 

is a delinquent youth or a youth in need of supervision, it 

is necessary to refer to an underlying criminal statute. 

That does not make the Youth Court Act unconstitutional. 

Similarly, $5 61-12-601, MCA, establishes the offense of 

unlawful operation of a motor vehicle by a minor. That 

statute establishes the jurisdiction of the courts and the 

penalties which can be imposed. The statute is not deficient 

merely because one must look to other statutes to determine 

whether the minor has unlawfully operated a motor vehicle. 

Section 61-12-601, MCA, is not unconstitutional. 

The State's second argument is that the District Court's 

dismissal violates the policy of the Montana habitual traffic 

offender laws, $55 61-11-201, et seq., MCA. Section 

61-11-201, MCA, states: 

This part is predicated upon the belief and 

philosophy that innocent drivers and other innocent 

passengers and pedestrians have a constitutional 

right to live, free from fear of death or injury 

from habitual traffic offenders. Further, it is 

the purpose of this part to reduce the number of 

motor vehicle accidents in this state and to 

provide greater safety to the motoring public and 

others by denying to the habitual traffic offenders 

the privilege of operating a motor vehicle upon the 

public streets and highways of this state. 

The State argues that this statute makes no distinction 

between juvenile and adult drivers, and making such a 

distinction would frustrate the purpose of the habitual 

traffic offender laws. The habitual traffic offender laws 

provide for the accumulation of points upon conviction for 

traffic offenses. A conviction for driving under the 
influence of alcohol is 10 points. Section 61-11-203 (2) (d) , 

MCA. A conviction for unlawful operation of a motor vehicle 

by a minor results in the accumulation of only 2 points. 

Section 61-11-203(2) (L), MCA. An accumulation of 30 points 

results in revocation of the offender's license for 3 years. 

Section 61-11-211, MCA. Thus, concludes the State, allowing 

a juvenile to be found guilty under S 61-12-601, MCA, 

resulting in the accumulation of only 2 points violates the 

purpose of the habitual traffic offender law. 

We do not agree. The purpose expressed in S 61-11-201, 

MCA, can be accomplished under the penalty provisions of S 

61-12-601 (2) (b) , MCA. Under that statute, the court may 

"revoke the driver's license of such child, or suspend the 

same for such time as may be fixed by the court." Under S 

61-12-601, MCA, the minor's driver's license can be revoked 

or suspended prior to the accumulation of 30 points. 

Further, 5 61-12-601, MCA, does not contain the 

mandatory jail provisions applicable to adults convicted 

under S 61-8-401, MCA. The absence of incarceration is 

consistent with the philosophy expressed throughout Montana 

law to attempt to rehabilitate youthful offenders, not punish 

them. Under 5 61-12-601(2)(a), MCA, the court has the power 

to "impose a fine, not to exceed $50, provided such child 

shall not be imprisoned for failure to pay such fine." 

(Emphasis added.) One purpose of the Youth Court Act 

declared in S 41-5-102(2), MCA, is: 

(2) to remove from youth committing violations of 

the law the element of retribution and to 

substitute therefor a program of supervision, care, 

rehabilitation, and, in appropriate cases, 

restitution as ordered by the youth court. 

The legislature is attempting to treat youthful offenders 

differently than adult offenders. A conviction under S 
61-8-401, MCA, as urged by the State, would result in jail 

time for the youth. This conflicts with the emphasis placed 

by the legislature on rehabilitation as opposed to 

retribution when youthful offenders are involved. 

We agree with the interpretation of the District Court 

that a minor who commits a vehicular offense is guilty of 

unlawful operation of a motor vehicle under S 61-12-601, MCA. 

That stautute is not unconstitutionally vague because one 

must refer to other vehicular offense statutes to determine 

whether the minor engaged in unlawful operation of a motor 

vehicle. Further, finding that a youth has violated § 

61-12-601, MCA, upholds the policy of the habitual traffic 

offender law, and is consistent with the philosophy found 

throughout Montana law of emphasizing rehabilitation over 

retribution. 

The order of the District Court is affirmed. 

We Concur: 

Chief Justice 
Mr. Justice L. C. Gulbrandson, dissenting: 

I respectfully dissent. 

Contrary to the declarations in the majority opinion, 

the State does not argue that S 61-12-601, MCA, is unconstitutional. The State's position is that the section does not 

establish a criminal offense, and it was only when the District Court ruled that it established a crime did the constitutional infirmity of vagueness arise. 

The record is clear that the defendant entered a plea 

of guilty to DUI (5 61-8-401, MCA) in Gallatin County Justice 

Court on March 7, 1981, one month prior to his seventeenth 

birthday, and that he pled guilty as an adult to DUI on May 

9, 1982. The present DUI offense occurred December 19, 1984, 

which date is within the five-year period contemplated by 

§ 61-8-714 (3), MCA. 

The Justice Court, on March 7, 1981, had jurisdiction 

to accept the plea of guilty and was only limited in the 

punishment it could impose under § 61-12-601, MCA. 

This Court, in State of Montana ex rel. Lloyd Scott 

Maier v. The City Court of Billings (Mont. 1983), 662 P.2d 

276, 40 St.Rep. 560, stated: 

The provisions of section 61-12-601, 

MCA, are therefore exclusive as to 

jurisdiction of traffic offenses involving minors, and youth courts in this 

state are granted no jurisdiction of 

such traffic law violations. 

Maier, 662 P.2d at 281. 

It is my opinion that the legislature, by excluding 

traffic violations from the Youth Court Act (5 61-12-601, 

MCA) and by opening a youth's traffic records to public 

inspection (§ 41-5-602, MCA) has indicated a legislative 

intent that juvenile drivers be subject to the same 
responsibilities as adult drivers, although imprisonment is 

not all-owed as punishment for juvenile traffic offenders. 

The majority, by ruling that DUI offenses (no matter 

how many) committed by a juvenile may not be considered in 

the application of S 61-8-714 (3) , MCA, in the prosecution of 

an adult charged with DUI, in my view, is undermining the 

policy of the habitual traffic offender law which it claims 

to be upholding. 

Once again, because of judicial decision, the legislature will be faced with the responsibility of declaring the 

public policy of this State with regard to the prosecution of 

DUI offenses under $ 61-8-714 (3) , MCA, and the accumulation 

of traffic conviction points under S 61-11-203(2) (d), MCA. 

I would reverse the order of the District Court. 
Mr. Justice Fred J. Weber dissents as follows: 

I concur in the foregoing dissent of Justice 

Gulbrandson. 

The code section relating to the revocation of driving 

privileges for habitual traffic offenders is presently contained in §§ 61-11-201 to -215. This was enacted as Chapter 

No. 362 in the 1974 Legislative Session. As enacted, the 

title stated that it was an act relating to habitual traffic 

offenders providing for a system of conviction points leading 

to revocation of driving privileges. As appears from a 

review of the Act, the essential element is that it affords a 

means of taking away the license to drive of a person who has 

demonstrated his apparent indifference for the safety and 

welfare of others and his disrespect for the laws of Montana 

and disregard of the orders of courts. - See 5 61-11-202, MCA, 

for the legislative intent. I believe it is readily possible 

to give effect to the Act by taking away a driver's license 

without contradicting the other penalties provided in § 

61-12-601 and 61-8-401, MCA. I agree with Justice 

Gulbrandson in noting that the Act does not suggest any 

reason why the indifference of a driver to the safety and 

welfare of others is any different for a minor offender than 

for an adult. In fact, a minor indicates a greater disregard 

and disrespect for the laws of the state when he consumes 

alcohol, which is illegal for a person his age, and therefore 

more accurately fits within the group of persons whom the 

Legislature intended to control. 

The defendant pleaded guilty to DUI (S 61-8-401, MCA) in 

justice court while 16 years of age. Under S 61-11-203, MCA, 

"conviction" includes a finding of guilt by duly constituted 

judicial authority as a result of a plea of guilty. It 
clearly appears that the 16 year old's plea of guilty constitutes such a conviction. I would therefore conclude that 

there is a basis under these statutes for the determination 

by the court whether the defendant was a habitual traffic 

offender who should be required to surrender his driver's 

license. I would therefore reverse the Order of the District 

Court. 

Mr. Chief Justice J. A. Turnage, dissents as follows: 

I concur in the foregoing dissent of Mr. Justice L. C. 

Gulbrandson and the dissent of Mr. Justice Fred J. Weber.