No. 92-561 

IN THE SUPREME! COURT OF THE STATE OF MONTANA 

1993 

WILLIAM J. MONTANYE, 

Petitioner and Appellant, 

-vRespondent and Respondent. 

APPEAL FROM: District court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gregory A. Jackson, Jackson & Rice, Helena, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Peter 

Funk, Assistant Attorney General, Helena, Montana 

Filed: 

Submitted on Briefs: July 1, 1993 

December 6. 1993 

Decided: 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from a judgment af the First Judicial 

District Court, Lewis and Clark County, revoking petitioner's 

driving license and finding that the New York law of Driving While 

Ability Impaired by Alcohol is substantially similar to the Montana 

law of Driving Under the Influence of Alcohol. We affirm. 

The only question on appeal is whether the District Court 

erred in determining that the New York law is substantially similar 

to the Montana law so that petitioner's driving license was 

properly revoked under Montana law? 

William J. Montanye (Montanye) is a Montana resident who was 

cited in the state of New York on February 29, 1992, for driving 

while intoxicated. Montanye was convicted on March 6, 1992, of 

driving while ability impaired, which is a charge of lesser degree 

than the New York charge of driving while intoxicated. Montanye 

was assessed a $350 fine and $250 cost, and his license was 

suspended for 90 days. 

On April 9, 1992, New York authorities notified the Motor 

Vehicle Division of the Montana Department of Justice of Montanye's 

conviction. This action was taken pursuant to the Uniform Driver 

License Compact which both New York and Montana have adopted. See 

5 61-5-401, MCA, which sets forth the Compact in Articles I through 

IX and which is cited as "Driver License Compact." The Driver 

License Compact requires that states are to report convictions of 

charges occurring in their states to the home state of a violator. 
~ollowing notification, the Montana Department of Justice, 

Motor Vehicles Division, suspended Montanye's Montana's driver's 

license as of April 9, 1992, for a period of six months. On May 1, 

Montanye initiated this action in District Court seeking review of 

the driver's license usp pension action. Montanye also sought a 

stay of the suspension which was granted on May 6, 1992. 

The District Court, in an order filed October 9, 1992, 

determined that, under the Driver License Compact, the New York 

offense of Driving While Ability Impaired is substantially similar 

to the Montana offense of Driving Under the Influence of Alcohol 

(DUX). Further, the court determined that Montana should properly 

suspend Montanye's license for six months, less the 90 days for 

which Montanye had his driving privileges suspended in New York. 

Because of the substantive changes made in the statute by 

amendments, we set forth § 61-8-401, MCA (1991), as follows: 

61-8-401. Persons under the influence of alcohol or 

drugs. (1) It is unlawful and punishable as provided in 

61-8-714 and 61-8-723 for anv person who is under the 

influence of: 

(a) alcohol to drive or be in actual Dh~sical 

control of a vehicle upon the wavs of this state open to 

the public; 

... 

(d) alcohol and anv danaerous or other drua to drive 

or be in actual phvsical control of a vehicle within this 

state. 

(2) The fact that any person charged with a 

violation of subsection (1) is or has been entitled to 

use alcohol or such a drug under the laws of this state 

does not constitute a defense against any charge of 

violating subsection (1). 

13) "Under the influence" means that as a result of 

takina into the body alcohol. druas, or anv combination 

thereof, a Dersonts abilitv to safelv operate a motor 

vehicle has been diminished. 

(4) Upon the trial of any civil or criminal action 

or proceeding arising out of acts alleged to have been 
committed by any person driving or in actual physical 

control of a vehicle while under the influence of 

alcohol, the concentration of alcohol in the person at 

the time alleged, as shown by analysis of the person's 

blood, urine, or breath, shall give rise to the following 

inferences: 

(a) If there was at that time an alcohol 

concentration of 0.05 or less, it may be inferred that 

the person was not under the influence of alcohol. 

(b) If there was at that time an alcohol 

concentration in excess of 0.05 but less than 0.10, that 

fact shall not give rise to any inference that the person 

was or was not under the influence of alcohol but such 

fact may be considered with other competent evidence in 

determining the guilt or innocence of the person. 

(cf If there was at that time an alcohol 

concentration of 0.10 or more, it may be inferred that 

the person was under the influence of alcohol. The 

inference is rebuttable. 

(5) The provisions of subsection (4) do not limit 

the introduction of any other competent evidence bearing 

upon the issue of whether the person was under the 

influence of alcohol, drugs, or a combination of the two. 

(Emphasis supplied.) 

As emphasized, § 61-8-401(3), MCA, defines a person under the 

influence of alcohol as one whose ability to safely operate a motor 

vehicle has been diminished. In comparison, N.Y. Veh. and Traf. 

Law 5 1192.1, provides: 

Driving while ability impaired. No person shall operate 

a motor vehicle while the person's ability to operate 

such motor vehicle is impaired by the consumption of 

alcohol. 

Separate from the Driver License Compact provisions, Montana 

9 61-5-204, MCA, allows suspension of a resident's license upon 

conviction in another state, stating in pertinent part: 

suspenaing resident's license upon conviction in another 

state. The department is authorized to suspend or revoke 

the driver's license . . . of any resident of this state . . . to drive a motor vehicle in this state upon 

receiving notice of the conviction of the person in 

another jurisdiction of an offense in that jurisdiction 

which, if committed in this state, would be grounds for 
the suspension or revocation of the driver's license . . 

Montana law provides that conviction of a DUI carries with it 

a fine, imprisonment, and possible revocation or suspension of 

license, Montanye was convicted in New York of driving while 

impaired by alcohol which carries with it a potential punishment of 

a fine, imprisonment or suspension of license. 

Both laws deal with the driver's diminished ability to drive 

while under the influence of alcohol. Both states provide for 

suspension of driver's license as a punishment. The suspension is 

90 days in New York and six months in Montana. &@ S 61-5-208, 

MCA. Montanye contends that the two sets of laws are totally 

dissimilar and that he should not have his license suspended here. 

The declaration of policy in the Driver License Compact 

adopted by both states provides a guide to the policy behind the 

Compact, providing in S 61-5-401(1)(c), MCA: 

the continuance in force of a license to drive is 

predicated upon compliance with laws and ordinances 

relating to the operation of motor vehicles in whichever 

jurisdiction the vehicle is operated. 

The law in New York prohibits a driver from driving when alcohol 

impairs his or her ability to drive. The Montana law prohibits a 

driver from operating a car when his or her ability to drive safely 

is diminished. 

As pointed out by the District Court, while the New York 

statute does not define impaired or intoxicated, in the case of 

People v. Miller (1975), 373 N.Y.S.2d 312, 314, the New York court 

defined intoxication: 
Therefore, this court finds that it was the intention of 

the Legislature that a person be convicted of driving 

while intoxicated when it is established that he has 

consumed enough alcohol so that his physical and mental 

control are markedly diminished; or putting it another 

way, that his iudument and abilitv to operate a motor 

vehicle are adverselv affected to a substantial derrree. 

(Emphasis added,) 

If driving while intoxicated is defined as having one's 

physical and mental abilities vlmarkedly" diminished, driving while 

alcohol impaired indicates that the degree of impairment is 

somewhat less than markedly diminished. 

The District Court here compared the similarities and 

differences between the Montana and New York law and concluded that 

while there were a few differences, the offenses are substantially 

similar. The District Court emphasized that the conviction of 

either offense could result in fine, imprisonment and loss of 

driving privileges. It also emphasized that under New York law, a 

Montana DUI conviction would be deemed driving while impaired and 

therefore would come within the Driver License Compact provisions. 

The District Court further concluded that the fact that the Montana 

violation is a misdemeanor and the New York violation is a traffic 

offense is not a significant difference. It pointed out that 

Montana law requires finding that the driver has a diminished 

capacity to operate his vehicle safely. New York law requires that 

impairment be found when as a result of the ingestion of alcohol, 

a driver's control of a vehicle is less than would be expected by 

a reasonably prudent driver. The court concluded that a reasonably 

prudent driver also would be a safe driver. The District Court 
therefore concluded that the New York offense of driving while 

impaired is similar to Montana's driving under the influence laws. 

Under the Driver License Compact Montana is required to 

determine if the offenses described in New York are of a 

 s substantially similar nature." Driver License Compact, Article 

IV, (3), 5 61-5-401, MCA. We affirm the District Court's 

conclusion that the New York offense of driving while impaired is 

substantially similar in nature to the Montana law of driving under 

the influence. 

The dissent contends that since conviction in New York while 

"impairedn requires a lesser degree of intoxication than Montana, 

the offenses are not substantially similar. The dissent seems to 

contend that under City of Helena v. Davis (1986), 222 Mont. 492, 

723 P.2d 224, the only way in which a conviction can be obtained is 

to spell out the alcoholic concentrations as set forth in the 

present 5 61-8-401(4), MCA. That analysis ignores the changes 

subsequently made to our statute after Davis was decided. 

As noted, the 1991 5 61-8-401(4), MCA, provides for various 

inferences which are to be applied to alcohol concentrations at 

various levels. Apparently the dissent is suggesting that if these 

elements are not presented within jury instructions, then under 

Davis there cannot be impairment which is different than the state 

of New York. We disagree with that analysis. 

As a result the 1987 amendment to 5 61-8-401, MCA, Montana is 

no longer limited to proof of alcohol concentration in a person's 

blood, urine or breath. While previous subsections of 5 61-8-401, 
MCA, contain the cut-off levels of blood alcohol content, the 1987 

amendment has added a definition by which "under the influences' can 

be defined not by a chemical analysis of the blood, but by the 

observation that a "person's ability to safely operate a motor 

vehicle has been diminished." 

This 1987 amendment undermines any controlling affect of the 

m decision. In Davis, we determined that the instruction given 

to the jury which attempted to define "under the influencevp was not 

correct because such an evaluation had become more precise. In 

1987, the definition of "under the influence" underwent another 

change, this time it grew to include a definition which considered 

the driver's ability to drive and not just his blood alcohol 

content. 

The reasoning concerns an outdated 1955 instruction 

erroneously given to the jury in the 1986 case. That instruction 

did not take into consideration the assumptions raised when blood 

alcohol content was measured. Subsequent to 1955, the legislature 

added assumptions as to ability to drive based upon the alcoholic 

content of a person's blood. The law had been changed to reflect 

those specific levels of alcoholic content in the blood. Thus, the 

Davis Court was correct in reversing because the jury instruction 

did not reflect the current assumptions contained in the law. 

In 1987, the legislature determined that "under the inf luencew 

is not exclusively determined by the blood" alcoholic content. 

such content levels create inferences. Now, "under the influencen 
is defined by the diminution of a person's ability to drive a 

vehicle. 

This is exactly what the New York law concerning mimpairment** 

was meant to do. It was meant to give police a tool to determine 

when a person's ability to drive was diminished, despite the lack 

of breath analysis at the scene. People v. Cruz (1979), 423 

N.Y.S.2d 625, 628. We conclude that the additions to the Montana 

statutes are comparable to the additions to the New York statutes. 

The Driver License Compact makes it reciprocal for states 

adopting the uniform law to comply with the traffic laws in sister 

adopting states. Montanye had not complied with New Yorkss traffic 

laws. He was convicted of driving while impaired because of 

alcohol and had his driving privileges revoked for 90 days. This 

is half the time required by Montana law for a suspended license. 

The District Court concluded that Montanye's driver's license could 

not be suspended for more than a total of six months and therefore 

subtracted from the Montana suspension the New York revocation of 

90 days. The State of Montana has not cross-appealed the issue of 

length of time for license revocation and we will not, therefore, 

consider this issue on appeal. In order to preserve an issue not 

raised by appellant, respondent must file notice of cross appeal. 

Rules 5(a), 14, M.R.App.P.; Neumann v. Rogstad (l988), 232 Mont. 

24, 757 P.2d 761. 

We hold that the District Court did not err in determining 

that the New York law is substantially similar to the Montana law 
so that petitioner's driving license was properly revoked under 

Montana law. 

Affirmed. 

/' 

We Concur: i 

ip" 

Justices 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority's opinion in this case. 

The majority's opinion has not cited New York's statute in its 

entirety. In its entirety, it provides for three separate offenses 

which relate to operating motor vehicles under the influence of 

alcohol. They are the following: 

1. Driving while ability impaired. No person 

shall operate a motor vehicle while the person's ability 

to operate such motor vehicle is impaired by the 

consumption of alcohol. 

2. Driving while intoxicated; per se. No person 

shall operate a motor vehicle while such person has a -10 

of one per centum or more by weight of alcohol in the 

person's blood as shown by chemical analysis of such 

person's blood, breath, urine or saliva, made pursuant to 

the provisions of section eleven hundred ninety-four of 

this Article. 

3. Driving while intoxicated. No person shall 

operate a motor vehicle while in an intoxicated 

condition. 

N.Y. Veh. & Traf. Law 5 1192. 

Paragraphs 2 and 3 of New York's statute are substantially 

similar to 5 61-8-406 and -401, MCA, respectively. However, 

defendant was convicted of subparagraph 1 of the New York law. 

There is no counterpart in Montana for that paragraph. 

The New York statute does not define the degree to which a 

person must be under the influence of alcohol before he or she is, 

as a matter of law, "impaired. " The majority cites Pea* v. Miller 

(1975)' 373 N.Y .S. 2d 312, 314, for the principle that "intoxi~ated~~ 

means that a driver's ability to operate a vehicle is "adversely 

affected to a substantial degree." However, in a more recent 
decision, which was controlling at the time of this defendant's 

conviction, the highest court of the State of New York held that 

the requirement for "impairmentt1 is satisfied by a much lesser 

degree of influence. In people v. Cruz (IYTY), 423 N.Y.S.2d 625, 628, 

399 N.E.2d 513, 516, the New York Court of Appeals held that: 

On its face, however, the statute does not speak of 

degrees of: impairment; it simply prohibits the driving of 

a motor vehicle when the driver's "ability to operate 

such vehicle is impaired.'* (Vehicle & Traffic Law, 

s. 1192, subd. 1). Thus drivinq a motor vehicle while 

there is anv alcoholic impairment of the driver's 

"ability to operate such vehiclets would constitute a 

violation, 

. . . It is evident from the statutory language and 

scheme that the question in each case is whether, by 

voluntarily consuming alcohol, this particular defendant 

has actually impaired, to any extent, the physical and 

mental abilities which he is expected to possess in order 

to operate a vehicle as a reasonable and prudent driver. 

[Emphasis added]. 

We have specifically held in Montana that the degree of 

impairment which the New York court found sufficient to convict 

under subsection 1 of its impairment law, is not sufficient to 

convict under Montana's statute which prohibits operating a motor 

vehicle while under the influence of alcohol. 

In City ofHelena v. Davb (1986), 222 Mont. 492, 723 P.2d 224, we 

held that it was error to instruct a jury that a person could be 

convicted of operating a vehicle under the influence of alcohol in 

violation of 5 61-8-401, MCA, if the jury simply found Itany 

alcoholic impairment.s' In that case, the defendant was charged 

with operating a motor vehicle under the influence of alcohol or 
drugs in violation of 5 61-8-401, MCA. The jury was instructed, 

over defense counsel's objection, that "[ilf the ability of the 

driver of an automobile has been lessened in the slightest degree 

by the use of aicohoi, then the driver is deemed to be under the 

influence of alcohol.'* Davis, 723 P.2d at 225. On appeal, the 

defendant contended that he could not violate § 61-8-401, MCA, 

unless his driving ability was impaired "to a degree that [rendered] him 

incapable of s& driving a (moforj vehicle." Davis, 723 P.2d at 225 

(underlining added). The defendant's position was as follows: 

Davis asserts, the statute he was charged and convicted 

of violating does contain a clear legislative directive 

as to the extent of influence of the intoxicants. The 

offense charged in this case does not say the law is 

broken if one drives while impaired to the "slightest 

degree;" rather, the law states an offense is committed 

if one's driving ability is impaired "to a degree that 

renders him incapable of safely driving a [motor] 

vehicle. * 

Davis, 723 P.2d at 226. 

This Court agreed with the defendant and held that the 

instruction given in the district court in that case: 

[Nlo longer [was] a proper statement of the law in this 

State and the instruction must either be revised or 

abandoned to conform with the provisions of 5 61-8-401. 

As noted above, we find the legislature today had 

specifically spelled out in § 61-8-401 the extent of the 

influence of intoxicants necessary to be convicted of 

driving under the influence of alcohol or drugs. As 

applied to the instant case, Davis is entitled to a new 

trial with the jury being instructed as to proper 

criteria set out in 5 61-8-401 which is applicable to a 

charge of driving under the influence of alcohol andfor 

drugs. 

Davis, 723 P.2d at 227 
In its reference to the dissent, the majority opinion totally 

misses the point. The point is that under New Yorkls offense of 

driving while impaired, any degree of impairment is sufficient. 

Under Montana's offense of driving while intoxicated, any degree of 

impairment is not sufficient. The fact that Montana's statute sets 

out inferences based on various levels of alcoholic concentrations 

merely confirms that distinction. 

The majority opinion states that "[alpparently the dissent is 

suggesting that if these elements are not presented within jury 

instructions, then under Davir there cannot be impairment which is 

different than the state of New York. We disagree with that 

analysis." 

The dissent has nothing to do with jury instructions. The 

dissent is based upon very clear distinctions between the New York 

statute for which defendant was convicted, and the Montana statute 

for which his license is being revoked. The difference, based upon 

prior decisions from that state and this state, is the degree of 

impairment necessary for conviction. 

The majority opinion states that: 

As a result of the 1987 addition to § 61-8-401, MCA, 

Montana is no longer limited to proof of alcohol 

concentration in a person's blood, urine or breath. 

While previous subsections of § 61-8-401, MCA, contain 

the cut-off levels of blood alcohol content, the newly 

added subsection (3) has added a definition by which 

"under the influence" can be defined not by a chemical 

analysis of the blood, but by the observation that a 

"person's ability to safely operate a motor vehicle has 

been diminished." 
Subsection (3) of 5 61-8-401, MCA, does not have anything to 

do with the method by which intoxication is proven and says nothing 

about observation of an accused's physical or mental capacities. 

It simply defines "under the influencett to mean that as a result of 

alcoholic consumption, "a person's ability to safely operate a 

motor vehicle has been diminished." (Emphasis added). 

For some reason which escapes me, the majority concludes that 

based upon the addition of this definition in the 1987 amendment to 

5 61-8-401, MCA, the Davis decision has no precedential significance. However, that makes no sense. In Davis, we held that it was 

error to instruct a jury that "[ilf the ability of the driver of an 

automobile has been lessened in the slightest degree by the use of 

alcohol, then the driver is deemed to be under the influence of 

alcoh01.~~ Davk, 723 P.2d at 225. We arrived at that conclusion 

because of statutory presumptions based upon blood alcohol content. 

We did not do so because of the absence of the definition which was 

added by amendment in 1987. In fact, according to the defendant in 

Davis, the definitional addition relied on by the majority was 

already present since the statute under which he was charged 

provided that: 

(1) It is unlawful and punishable as provided in 

61-8-714 for any person who is under the influence of 

(d) alcohol and any drug to a degree thal renders him 

incapable of safely driving a vehicle to drive or be in actual 

physical control of a vehicle within this state. 
Therefore, there was no change to Montana's DUI statute in 

1987 which has any bearing on our holding in Davk. We simply held 

that any diminution in the ability to drive, no matter how slight, 

did not constitute a violation of our DUI statute. If anything, 

the amendment referred to in the majority opinion makes that 

conclusion even more inescapable today. 

Since conviction of driving while "impaired" in New York 

requires a lesser degree of intoxication than driving "under the 

influence" in Montana, the offenses are not substantially similar 

as a matter of law. Indeed, if they were substantially similar, 

New York would not find it necessary to establish two separate 

offenses which differ only with regard to the degree of impairment 

an individual suffers from the influence of alcohol. 

For these reasons, I dissent from the majority opinion. I 

would reverse the judgment of the District Court. 

Justices Gray and Hunt join in the foregoing dissent. 
December 6, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Gregory A. Jackson 

Jackson & Rice 

833 Last Chance Gulch 

Helena, MT 59601 

Hon. Joseph P. Mazurek, Attorney General 

Peter Funk, Assistant 

215 No. Sanders 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT