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, Judgepresiding.

COUNSEL OF RECORD: For Appellant: GregoryA. 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 theNew York law of DrivingWhile Ability ImpairedbyAlcohol is substantiallysimilarto theMontana law of Driving Under the Influence of Alcohol. We affirm. The only question on appeal is whether the District Court erred indetermining that theNew 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 90days. On April 9, 1992, New York authorities notified the Motor Vehicle Division of theMontana Department of JusticeofMontanye's conviction. This action was takenpursuant to the Uniform Driver License Compact which both New York and Montana have adopted. See 

### 5 61-5-401, MCA,which sets forththe Compact inArticles 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.~ollowingnotification, the Montana Department of Justice, Motor Vehicles Division, suspended Montanye's Montana's driver's licenseas of April 9,1992, for aperiod of sixmonths. OnMay 1, Montanye initiated this action in District Court seeking reviewof the driver's license usp pension action. Montanye also sought a stay of the suspensionwhich 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 influenceof alcoholor drugs. (1)It is unlawful andpunishable asprovided 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 avehicle upon the wavs of this state open to the public;



# ... (d) alcohol and anvdanaerousorotherdrua todrive or be inactualphvsical control of avehiclewithin 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) "Underthe influence" means that as a result of takina into the body alcohol. druas, or anv combination thereof, a Dersontsabilitv 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 beencommitted 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, shallgive rise tothe 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 theperson 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 introductionof any other competent evidence bearing upon the issue of whether the person was under the influenceof 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 onewhose ability to safelyoperate amotor 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 licenseupon conviction in another state. Thedepartment isauthorized to suspendor 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 jurisdictionof an offense in that jurisdiction which, if committed in this state,would be grounds forthe suspension or revocation of the driver's license

# ..

Montana lawprovides that convictionof a DUI carrieswith it a fine, imprisonment, and possible revocation or suspension of license, Montanye was convicted in New York of driving while impairedby alcohol which carrieswith it apotential 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 suspendedhere. 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 operationof motor vehicles inwhichever jurisdictionthe 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 fromoperating a carwhen his orher ability todrive 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 Peoplev. Miller (1975), 373 N.Y.S.2d 312, 314, theNew York court defined intoxication:Therefore, this court finds that itwas 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.

(Emphasisadded,) If driving while intoxicated is defined as having one's physical andmental 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 differencesbetween theMontana andNew York lawand 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 drivingprivileges. It also emphasized that underNew York law, a Montana DUI convictionwould be deemed driving while impaired and thereforewould comewithin the Driver License Compactprovisions. The District Court further concluded that the fact that theMontana violation is amisdemeanor and theNew 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 capacityto operatehisvehicle safely. New York lawrequires that impairment be foundwhen as a result of the ingestion of alcohol,

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

a reasonablyprudent driver. The court concluded that a reasonably prudent driver also would be a safe driver. The District Courttherefore concluded that the New York offense of driving while impaired is similar toMontana'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 substantiallysimilar innature to theMontana law of drivingunder 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 onlyway inwhich a conviction canbe 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 subsequentlymade 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 thedissent 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, containthe cut-off levels ofblood alcohol content, the 1987 amendmenthas added a definitionbywhich "underthe 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 

# mdecision. In

### Davis, we determined that the instruction given to the jurywhich attempted to define "underthe 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 definitionwhich 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 theblood. 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 determinedthat "underthe influencew is not exclusively determined by the blood" alcoholic content. such content levels create inferences. Now, "under the influencenis defined by the diminution of a person's ability to drive a vehicle. This is exactlywhat theNew York law concerningmimpairment**

was meant to do. Itwas 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 theNew 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 withNew Yorksstraffic laws. He was convicted of driving while impaired because of alcohol and had his driving privileges revoked for 90days. This is half the time required by Montana law for a suspended license. TheDistrictCourtconcludedthatMontanye's driver's licensecould not be suspended formore than a total of six months and therefore subtracted from the Montana suspension the New York revocation of 90days. 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 lawso that petitioner's driving license was properly revoked under Montana law. Affirmed.

/' We Concur: i

ip" JusticesJustice Terry N. Trieweiler dissenting. Idissent from the majority's opinion in this case. Themajority's opinion has not citedNew York's statute in its entirety. In itsentirety, itprovides for three separateoffenses 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 vehiclewhile theperson's ability to operate such motor vehicle is impaired by the consumption of alcohol.
2. Driving while intoxicated;per se. No person shalloperate amotor vehicle while suchperson 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'sblood,breath, urine orsaliva,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)' 373N.Y .S.2d 312, 314, for theprinciple that "intoxi~ated~~

means that a driver's ability to operate 

### a vehicle is "adversely affected to a substantial degree." However, in a more recentdecision, 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 "impairmentt1is satisfied by a much lesser degree of influence. Inpeople

### 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 degreesof: impairment; it simply prohibits thedriving 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 vehicletswould constitute a violation,



# . . . It is evident from the statutory language and scheme that the question in each case is whether, by voluntarily consuming alcohol,thisparticulardefendant has actually impaired, to any extent, the physical and mental abilitieswhichhe isexpected topossess inorder to operate a vehicle as a reasonableand prudent driver. [Emphasisadded]. 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 CityofHelenav.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 ordrugs 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 "toadegree 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 specificallyspelled 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 227In its referenceto the dissent, themajority opinion totally misses the point. The point is that under New Yorklsoffense of driving while impaired, any degree of impairment is sufficient. Under Montana's offense ofdrivingwhile intoxicated, anydegree of impairment isnot sufficient. The fact thatMontana's statute sets out inferencesbased on various levels of alcoholic concentrations merely confirms that distinction. Themajority opinion states that "[alpparently the dissent is suggesting that if these elements are not presented within jury instructions,then underDavir there cannot be impairmentwhich 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 cleardistinctions between the New York statute forwhich defendantwas convicted,and theMontana statute for which his license isbeing revoked. Thedifference,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 dowith themethod bywhich intoxication isproven and saysnothing about observation of an accused's physical or mental capacities. It simplydefines "under the influencett tomean that as a result of alcoholic consumption, "a person's ability to safely operate a motor vehicle has been diminished." (Emphasisadded). For some reason which escapes me, the majority concludes that based upon the addition of this definition in the 1987 amendmentto 5 61-8-401, MCA, the Davis decision has no precedential significance. However, that makes no sense. InDavis, we held that itwas

error to instructa jury that "[ilf the ability of thedriver of an automobilehas been lessened in the slightestdegreeby 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 presumptionsbased uponblood alcohol content. We did not do sobecause of the absence of thedefinitionwhich was added by amendment in 1987. In fact,according to thedefendant 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 ofsafely 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 inDavk. 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 offenseswhich 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.December6, 1993 CERTIFICATEOFSERVICE Iherebycertifythat thefollowingorderwas sentby United Statesmail, prepaid, to the followingnamed: Gregory

### A.Jackson Jackson&Rice 833LastChance Gulch Helena,MT 59601 Hon. JosephP.Mazurek, AttorneyGeneral PeterFunk,Assistant 215No.Sanders Helena,MT 59620



### EDSMITH CLERKOFTHESUPREMECOURT