No. 84-239 INTHE SUPREME COURT OF THE STATE OFMONTANA 1984

STATE OF MONTANA, exrel., COLONEL LARRY G. MAJERUS, Adminstratorof theMontanaHighwayPatrol, Plaintiff and Respondent,

DANIEL DUANE CARTER, Defendant and Appellant.

APPEAL FROM: DistrictCourtof the EighthJudicial District, Inand for the Countyof Cascade, TheHonorableJohn M. McCarvel, Judge presiding.

COUNSEL OF RECORD: For Appellant: Elartelius & Ferguson; Channiny J. Harteliusargued, GreatFalls, Montana

ForRespondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana JimScheier argued, Asst. Atty. General, Helena J. Fred Bourdeau, CountyAttorney, GreatFalls, Montana; JerryGuenther, Deputy CountyAttorney

~~~ Submitted: October 29, 1984 Decided: December 28, 1984

Filed: 't ; . 2

## -944r. 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 constitutionalityand the hearingwas continued. On March 2, 1.984, his co~stitutionalclaims 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 licensepending thisappeal. Carter raises eight issues:

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

### a claim improperlydenied; (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 offender 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 severalof the citations invalidbecausehe was not advised.ofhis right to counsel;and (8) DoesaDistrictCourt judgehave thepower 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. ?'hecomplaint 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 licensewas 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,stateactions. Carter's contention thathe has the right to due process is correct. The right to due process is stated in Re1.lv. 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. (Citationsomitted.)" 402U.S. at 539. The question ishow much process is due. The answer is not

as much as in a criminal case. "A procedural rule thatmay satisfy due process i.n one context may not necessarilysatisfydue process in every case. Thus,procedures adequate to determine awelfare claimmay not suffice to try a felony charge." Rell, supra, 402U.S. at 540. Issue

### -- No. 1. Should the lower courthave granted appellant's motion to dismiss because he had inadequate notification of the "charges"againsthim? 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 againsthim. Theverified complaint,on file in theDistrict Court, contained copj-esof 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 Distrjct Court substantiated the convictions. Attached to the compl-aintwere 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-ationof -- due process or cruel and unusual punishment? Due Process. Carter argues that the Act denies due process because there isno provision for "posthearing." Jn supporthe citesDixonv. Love (1977),431U.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-rgumentis without merit. Apparentlv Carter is attempting to argue that the government cannot deprive a person of an importantproperty 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. Hewas 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.tionthat 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. Thedifference 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 receiveprobationary 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 ofbeing onebut thisdoesnot 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 'punishment1as 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.tionis within thepolice power of the state, it is not the province of the Court to decide if the 1.a.wcould 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 irrelevantbecause a driver's license is neither a 

### constitutional nor a. civil right. Carter is entitled to due process because a license is aproperty interest (Bell,)not because this is a criminal proceeding orbecause a license is a right. Issue 

### - No. 

### - 5. 

### Does due process require that a ticketed motorist be advised that habitual traffic offender points result froma conviction? A Colorado case provides some support for Carter's argument thatdue 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 doesnot 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-dingguilty or, 3) 

### bond forfeiture by a person charged with a motor vehicle violation. Carter contends the third definition of conviction iswrong 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.sestating tha.t forfeiture of hail is equivalent to conviction other jurisdictions have

so held. (Illinois, Virginia, Texas, Alabama, Iowa, Missouri, North Ca.rolinaand 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 

### -- appellantwas not advised of right to counsel? Carter contends thathe had the right to counsel andwas 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 counselmay notbe used to establish habitual traffic offender status for thepurposeof 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 prohibitionof Baldsarv. 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 somemerit in thisargument. TheUnited 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 enhancedpena.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 dueprocess should not be based on the d.istinctionbetween 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 thatCarter'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 themotorist. It is not a situationwhere the individual is completely ignorant of his rights and obl-igations. To receive a licenseaperson must become informed of Montana traffic laws and can be considered responsible for bearing the consequences. Issue -- 

### No. 8 Does the District Court judgeha-vethe power to issue aprobationary 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