No. 84-239 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, ex rel., COLONEL 

LARRY G. MAJERUS, Adminstrator of 

the Montana Highway Patrol, 

Plaintiff and Respondent, 

DANIEL DUANE CARTER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Elartelius & Ferguson; Channiny J. Hartelius argued, 

Great Falls, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Jim Scheier argued, Asst. Atty. General, Helena 

J. Fred Bourdeau, County Attorney, Great Falls, 

Montana; Jerry Guenther, Deputy County Attorney 

~~~ 

Submitted: October 29, 1984 

Decided: December 28, 1984 

Filed: 't ; . 2 -944 
r. Justice John C. Sheehy delivered the Opinion of the 

Ccurt . 

On October 18, 1983, pursuant to the Habitual Traffic 

Offender Act [hereinafter the Act], the Cascade County 

Attorney began a civil. proceeding in the Eighth Judicial 

District, Cascade County, to have Daniel Carter declared a 

habitual traffic offend-er. During the show cause hearing on 

December 9 I 1983, Carter challenged the Act's 

constitutionality and the hearing was continued. On March 2, 

1.984, his co~stitutional claims were heard and on March 7, 

1984, they were denied. On March 16, 1.984, the show cause 

hearing reconvened and an order adjudging him a habitual 

traffic offender was issued on March 19, 1984. Carter 

appeals that order. He reteined his driver's license pending 

this appeal. 

Carter raises eight issues: 

(1) Was his motion to dismiss for failure to state a 

claim improperly denied; 

(2) Is the Act unconstitutional as a violation of due 

process or cruel and unusual punishment; 

(3) Is the point system arbitrary and capricious or 

without foundation; 

(4) May habitual of fender points, which pre~riously 

resulted in license suspension, now be used to determine a 

habitual. offender status; 

(5) Does due process require that a ticketed motorist 

be advised that habitual traffic offender points result from 

a conviction; 

(6) May he be charged habitual offender points for 

citations of which he now claims he is innocent; 
(7) Are several of the citations invalid because he was 

not advised. of his right to counsel; and 

(8) Does a District Court judge have the power to issue 

a probationary license? 

No issue is persuasive. The judgment of the District Court 

is affirmed. 

The facts are simple. From June 30, 1981 to May 2, 

1983, Daniel Carter accumulated 31 habitual offender points 

for ticketec7, driving violations. Section 61-11-203, MCA, 

mandates the number of points assigned to each violation. 

?'he complaint served on Carter contained a certification of 

record showing his accumulated points and copies of al.1 

citations except an August 13, 1982 citation for driving 

while his license was suspended. 

Carter raises issues relevant to criminal cases but 

irrelevant here. This is a civil appeal. State ex rel. 

Griffith v. Brustkerrl (Mont. 19831, 658 P.2d 410, 413, 40 

St.Rep. 194, 198. While it appears that criminal due process 

standards were satisfied, the standards to be met are for 

civil , not. criminal, state actions. 

Carter's contention that he has the right to due process 

is correct. The right to due process is stated in Re1.l v. 

Rurson (1971), 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90. 

"Once licenses are issued,. . . their continued 

possession may become essential in the pursuit of a 

livelihood. Suspension of issued licenses thus 

involves state action that adjudicates important 

interests of the licensees. In such case the 

licenses are not to be taken away without that 

procedural due process required by the Fourteenth 

Amendment. (Citations omitted.)" 402 U.S. at 539. 

The question is how much process is due. The answer is not 

as much as in a criminal case. "A procedural rule that may 

satisfy due process i.n one context may not necessarily 
satisfy due process in every case. Thus, procedures adequate 

to determine a welfare claim may not suffice to try a felony 

charge." Rell, supra, 402 U.S. at 540. 

Issue -- No. 1. Should the lower court have granted appellant's 

motion to dismiss because he had inadequate notification of 

the "charges" against him? 

Carter contends that the omission of one citation force2 

him to defend charges without proper notice. This is 

meritless and the lower court correctly denied his motion to 

dismiss. State ex rel. Sol v. Crcutt (19791, 180 Mont. 15, 

588 P.2d 996. He had adequate knowledge of the allegation 

against him. The verified complaint, on file in the District 

Court, contained copj-es of all citations, he received a copy 

of the Rabitual Traffic Offender Certification of Record, he 

answered "yes" when the judge asked if he recalled the 

citation, and the hearing was continued from December to 

March during which time he received a copy of the citation. 

Note that, despite Carter's statement of the issue, he was 

not "charged" with anything. 

In Orcutt, an order adjudging Orcutt a habitual offender 

was reversed because a justice of the peace court record of 

one of the traffic violations was so insufficient that the 

conviction could not be substantiated. In this case the 

record before the Distrj ct Court substantiated the 

convictions. Attached to the compl-aint were eight citations 

for speedinq, one citation for driving with a revoked 

license, and one citation for improper passing. The 

citations showed Carter either pled guilty or forfeited bond 

for every citation. Unlike Orcutt, there was no ambiguity 

regarding conviction. 
Jssue No. 2. Is the act unconstitutional as a viol-ation of -- 

due process or cruel and unusual punishment? 

Due Process. Carter argues that the Act denies due 

process because there is no provision for "post hearing." Jn 

support he cites Dixon v. Love (1977), 431 U.S. 105, 97 S.Ct. 

1.723, 52 L.Ed.2d 172. In Dixon, the United States Supreme 

Court found constitutional an Illinois statute allowing the 

Secretary of State to make an initial summary decision, 

without a hearing, to revoke a driver's license hased on 

official records, with a full hearing only available 

afterwards. 

This a-rgument is without merit. Apparentlv Carter is 

attempting to argue that the government cannot deprive a 

person of an important property interest, such as a ?river's 

license, without providing a post-dispositional hearing. 

While this important constitutional issue was the issue in 

Dixon, the issue simply does not exist in this case. Carter 

had a hearing before, not after, his revocation. He was in a 

court before a judge, not in an administrative process and 

has an appeal to this Court before revocation. 

Carter argues that because S 61-11-210, PICA, gives no 

discretion to the judge, the hearing is inadequate. This 

araument is meritless; the judge has discretion to determine 

the sufficiency of the i.ndividual1 s traffic offense record, 

thus ensuring the adequacy of the hearing. Dixon does not 

support this argument. Dixon prohibits an "ex parte 

determina.tion that certain facts 'indicate . . . disrespect 

for the traffic laws, '" at 116, (concurring opinion Stevens, 

2.) but finds the system of "points" for various offenses 

"provide[s] an objective means for evaluating driving 

records" at 107. The difference between the point system in 
Dixon and in this case is that Montana enacted the point 

system legislatively while 1ll.inois ' point system was 

developed administratively. Xt is well within the 

legislative power to define the relative seriousness of 

various traffic offenses. 

Carter's argument that due process entitles him to 

attack h.is prior convictions in the hearing to revoke his 

license is not supported by law. He has already had a forum 

to refute those charges. He is now entitled to dispute the 

accuracy of the records but not the propriety of the 

convictions. 

Cruel and Unusual Punishment. Carter argues that revoking 

his driver's license is cruel and unusual punishment hecause 

there is no hardship exception and because DUI offenders can 

receive probationary licenses. 

Licensing drivers is within the police power of the 

state. Section 61-11-210, MCA, gives no discretion to the 

judge to determine who is a habitual offender or the 

consequences of being one but this does not create a cruel or 

unusual punishment. In State ex rel. Griffith v. Brustkern 

(Mont. 1983), 658 P.2d 410, 412, 40 St.Rep. 194, 197, this 

Court stated, "The purpose and nature of the suspension is 

for the protection of the unsuspecting public and does not 

constitute 'punishment1 as understood within the meaning of 

the law. " 

Issue -- No. 3. Is the point system arbitrary, capricious and 

without foundation? 

Finding the point system arbitrary would be substituting 

this Court's opinion for the legislature's in an area where 

the legislature clearly has the authority to enact 

legislation. This Court has recognized. the legislature's 
power to regulate driving. See, for example, Orcutt, and 

Brustkern. If the 1egisl.a.tion is within the police power of 

the state, it is not the province of the Court to decide if 

the 1.a.w could be better. 

Issue -- No. 4. May traffic offender points which previously 

resulted in license suspension now be used to determine 

habitual offender status? 

Carter attempts to raise double jeopardy, but the 

argument is irrelevant as this is not a criminal case. His 

argument that he is being denied a constitutional or civil. 

right because of a prior conviction is irrelevant because a 

driver's license is neither a constitutional nor a. civil 

right. Carter is entitled to due process because a license 

is a property interest (Bell,) not because this is a criminal 

proceeding or because a license is a right. 

Issue - No. - 5. Does due process require that a ticketed 

motorist be advised that habitual traffic offender points 

result from a conviction? 

A Colorado case provides some support for Carter's 

argument that due process mandates notice of the consequences 

of traffic violations. However, Colorado statute, not due 

process, requires the warning. A Colorado case, People v. 

Hampton (Colo. 1980), 619 P.2d 48, found that a warning is 

not required because the imposition of points does not impose 

punishment, revoking a driver's license is a. civil action, 

and an appellant need not he advised of his continuing duty 

to act as a law-abiding citizen. This is a well-reasoned 

conclusion and consistent with our holding in Brustkern , 

supra. 

Issue - No. - 6. Can appellant be charged habitual. offender 

points for citations of which he now claims he is innocent? 
Section 61-11.-203 (1) , MCA, defines conviction as 1) 

being found guilty, 2) plea-ding guilty or, 3) bond forfeiture 

by a person charged with a motor vehicle violation. Carter 

contends the third definition of conviction is wrong and he 

shoul.6 have the opportunity to collaterally attack those 

convictions in District Court. This Court does not agree. 

While there is no Montana. ca.se stating tha.t forfeiture 

of hail is equivalent to conviction other jurisdictions have 

so held. (Illinois, Virginia, Texas, Alabama, Iowa, 

Missouri, North Ca.rolina and Georgia.) 79 A.L.R. 2d. 866. 

Carter had an opportunity to be heard on all convictions. 

Issue -- No. 7. Are several of the citations invalid because 

appellant was not advised of right to counsel? 

Carter contends that he had the right to counsel and was 

not advised. of the right, therefore these convictions should 

not be considered. As support of the contention he cites 

Hampton, supra, which heid.: 

"Absent a valic? waiver of the right to counsel, a 

conviction obtained against a defendant who is not 

represented by counsel may not be used to establish 

habitual traffic offender status for the purpose of 

imposing punishment for Driving After Judgment 

Prohibited. (Citations omitted. ) This rule 

applies even though the prior conviction resulted 

from a plea of guilty and involved no actual 

imprisonment.. . . [TI he convictions here were 

punishable by a sentence to jail. Here, no 

incarceration was imposed; in Roybal I we assumed 

no incarceration was imposed. heref fore, our 

construction of the Driving After Judgment 

Prohibited statute on Roybal I to conform to the 

prohibition of Baldsar v. 1llinois (1980), - U.S. 

- , 100 S.Ct. 1585, 64 L.Ed.2d 169, against 

collateral use of uncounseled convictions applies 

with full force in the present case. " 619 P.2d at 

51.-52. 

There is some merit in this argument. The United States 

Supreme Court in Baldsar v. Illinois (1980), 446 U.S. 222, 

100 S.Ct. 1-585, 64 L.Ed.2d 169, held tha-t. uncounseled 

misdemeanor convictions may not be used under an enhanced 
pena.lty statute to convert a subsequent misdemeanor to a 

felony with a prison term. Baldsar and Hampton can be 

distinguished from this case because they were criminal 

appeals. However, the "amount" of due process should not be 

based on the d.istinction between criminal or civil or between 

right or privilege. The analysis should be how important is 

the property interest in a driver's license. 

Using this analysis, this Court fin3.s that Carter's due 

process rights have been satisfied. While we recognize the 

importance of a driver's license we find that requiring the 

state to inform a person of his right to counsel with every 

traffic violation would be an excessive burden on the state 

in relation to the benefit conferred on the motorist. It is 

not a situation where the individual is completely ignorant 

of his rights and obl-igations. To receive a license a person 

must become informed of Montana traffic laws and can be 

considered responsible for bearing the consequences. 

Issue -- No. 8 Does the District Court judge ha-ve the power to 

issue a probationary license? 

The relevancy of this issue is questionable. Carter 

argues that section 3-5-311!1) (dl, MCA, gives the judge the 

authority to issue licenses. Section 3-5-311 (1) (dl , states, 

"The judge of the district court may at chambers . . . (d) 

issue any process, make any order, and make and enter any 

default judgment." 

Section 61-3-1-210, MCA, clearly attempts to limit the 

District Court judge's power in a court. hearing for habitual 

offenders. Section 61-2-302, MCA, which establishes a 

driver's reh.abilitation program for individuals who have 

completed one year of a three-year revocation, indicates the 

legislature did not intend for the judge to have discretion. 
The judgment is affirmed. 

We Concur: 

add', 43/@& 

Chief Justice 

Justices