DAVID EDWARD BICK, 

Petitioner and Appellant, 

STATE OF MONTANA DEPARTMENT OF 

JUSTICE, DIVISION OF MOTOR VEHICLES, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

French, Mercer, Grainey & Duckworth; Edward K. 

Duckworth, Ronan, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kathy Seely, Asst. Atty. General, Helena, Montana 

* .. Submitted on Briefs: Sept. 25, 1986 

Decided: December 30, 1986 

Filed : DEC 3 0 191.36 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court 

of the Twentieth Judicial District in and for Lake County, 

Montana. The court affirmed a decision of the Department of 

Justice, Division of Motor Vehicles, suspending petitioner's 

driver's license. We affirm the order of the District Court. 

Dave Edward Rick, appellant, received written notice '9 

from the Montana Department of Justice, ~otbr Vehicle L 

Division, Driver Improvement Bureau (Bureau) that it intended 

to suspend his driving privileges from March 12, 1985, until 

September 12, 1985. Appellant could obtain a restricted 

probationary license if he attended a driver counseling 

session. The Bureau based its action on 5 61-2-302, MCA, 

S 61-5-206, MCA, and Rule 23.3.202, Administrative Rules of 

Montana (ARM) . 

Appellant attended the driver counselling session. He 

then petitioned the Bureau, pursuant to S 61-5-206 (3) , MCA, 

for a hearing on its action to restrict his driving 

privileges, where he moved the Bureau to rescind the order of 

suspension or probation. He filed exceptions to the hearing 

examiner's proposed decision denying his motion to rescind. 

The final decision of the Driver Improvement Committee, 

however, denied the motion to rescind. 

Appellant petitioned the District Court for a review of 

the decision. The issues were briefed by the parties and the 

District Court affirmed on two separate grounds: (1) the 

driver rehabilitation point system, Rule 23.3.202, ARM, was 

expressly authorized by the legislature in S 61-2-302(1), 

MCA, and impliedly authorized in 5 61-5-206 (1) (b) , MCA, and 

(2) appellant's driving record without appIi.cation of the 
point system is sufficient evidence to support suspension of 

his license. This appeal followed. 

We are presented with three issues: 

(1) whether the Department of Justice had authority to 

promulgate Rule 23.3.202, ARM; 

(2) whether Rule 23.3.202, ARM, is a valid 

administrative rule; and 

(3) whether appellant ' s driving record without. 

application of the point system is a proper basis for 

suspension of his driver's licence. 

Administrative agencies enjoy only those powers 

specifically conferred upon them by the legislature. Bell v. 

Department of Licensing (1979), 182 Mont. 21, 22, 594 P.2d 

331, 332. Administrative rules must be strictly confined 

within the applicable legislative guidelines. McPhail v. 

Montana Board of Psychologists (1982), 196 Mont. 514, 516, 

640 P.2d 906, 907. Indeed, it is axiomatic in Montana law 

that a statute cannot be changed by administrative 

regulation. Michels v. Department of Social and 

Rehabilitation Services (1980), 187 Mont. 173, 178, 609 P.2d 

271, 273. We look to the statutes to determine whether there 

is a legislative grant of authority. The District Court 

found Rule 23.3.202, ARM, was authorized under express 

authority of § 61-2-302 (1) , MCA, and impliedly authorized in 

§ 61-5-206 (1) (b) , MCA. 

Section 61-2-302(l), MCA, specifically authorizes the 

Department of Justice to establish by administrative rules a 

driver rehabilitation and improvement program. 

Establishment of driver improvement 

program--participation by off ending 

drivers. (1) The department of justice 

may establish by administrative rules a 

driver rehabilitation and improvement 
program or programs which may consist of 

classroom instruction in rules of the 

road, driving techniques, defensive 

driving, driver attitudes and habits, 

actual on-the-road driver's training, and 

other such subjects or tasks designed to 

contribute to proper driving attitudes, 

habits, and techniques. 

It is not our job to redesign the program should we find it 

lacking in any respect, but merely to determine whether or 

not the Department acted reasonably and within its delegated 

authority. The statute clearly grants rule making authority 

to the Department. 

Section 61-5-206(1) (b), MCA, does not contain specific 

rule making authorization. It says in pertinent part: 

Authority of department to suspend 

license or driving privilege or issue 

probationary license. (1) The department 

is hereby authorized to suspend the 

license or driving privilege of an 

operator or chauffeur without preliminary 

hearing upon a showing by its records or 

other sufficient evidence that the 

licensee: 

(b) has been convicted with such 

frequency of serious offenses against 

traffic regulations governing the 

movement of vehicles as to indicate a 

disrespect for traffic laws and a 

disregard for the safety of other persons 

on the highways; 

Nonetheless, a grant of authority to suspend a person's 

driver's license carries with it the implication that a 

procedure must be established for doing so. So long as 

"[tlhe interpretation is not plainly outside the board's 

authority . . . we are therefore bound by it.'' Douglas v. 

Beneficial Finance (9th Cir. 1972) , 469 F. 2d 453, 456, n. 2, 

(quoting Immigration and Naturalization Service v. Stanisic 

(1908), 395 U.S. 62, 72, 89 S.Ct. 1519, 1526, 23 ~.~d.2d 101, 

109). We find no evidence the Department exceeded its 
legislative grant of authority by promulgating Rule 23.3.202, 

ARM. 

We next must examine the rule to determine its 

validity. The rule sets out a system which assigns a given 

number of points for various kinds of traffic violations. 

Accumulation by a driver of a certain number of points over a 

period of time results in suspension or revocation of his 

driver's license. Appellant contends the point system is out 

of harmony and in conflict with S 61-5-206(1), MCA, because 

it engrafts additional requirements. " [N] o rule adopted is 

valid . . . unless: (a) consistent and not in conflict with 

the statute; and (b) reasonably necessary to effectuate the 

purpose of the statute . . . " Section 2-4-305 (6), MCA. 

A valid rule must meet both prongs of a two-prong test 

to determine whether or not it harmonizes with its enabling 

legislation. It must not engraft additional and 

contradictory requirements on the statute, and it must not 

engraft additional non-contradictory requirements on the 

statute which were not contemplated by the legislature. Bell 

v. Department of Licensing, supra, at 23, 594 P.2d at 333. 

The rule also must be reasonably necessary to effectuate the 

purpose of the statute. Board of Barbers of the Department 

of Professional and Occupational Licensing v. Big Sky College 

(Mont. 1981), 626 P.2d 1269, 1270, 38 St.Rep. 621, 623. We 

do not find that the point system is either a contradictory 

or non-contradictory additional requirement on the statute. 

It is a "rule of thumb" adopted for the 

convenience of the administration of the 

statute in order to bring before the 

department for hearing those who may 

justifiably have their license suspended, 

serving as a prima facie guide when the 

discretion of the administering officials 

would be invoked. As such, it provides a 
workable method for effectuating 

legislative purposes. 

State v. Birmingham (Ariz. 1964) , 390 P. 2d 103, 106. "The 

decision to use objective rules . . . provides drivers with 

more precise notice of what conduct will be sanctioned. and 

promotes equality of treatment among similarly situated 

drivers." Dixon v. Love (1977), 431 U.S. 105, 115, 97 S.Ct. 

1723, 1729, 52 L.Ed.2d 172, 182. The point system increases 

the fairness of the suspension process, is consistent with 

the statute, and is necessary to effectuate the purpose of 

the statute. 

Appellant also argues the District Court erred in its 

conclusion his driving record without application of the 

point system is sufficient evidence to support suspension of 

his license. He contends the legal conclusions were not 

supported by factual findings. The District Court clearly 

considered this argument before issuing its order: 

Although the petitioner's driving record 

was not specifically set forth in the 

findings of fact, the driving record was 

before the hearing examiner and the 

driver improvement committee and is quite 

sufficient to support the conclusion of 

law, without application of any point 

system, that four speeding convictions, 

one careless driving conviction and one 

improper passing conviction in a 25 month 

period shows a disregard for traffic laws 

and a disregard for the safety of other 

persons on the highway with such 

frequency of serious offenses as to 

support the department's suspension of 

petitioner's driver's license. 

This'court concurs in that conclusion and 

affirms the final decision of the 

department. 

The facts speak for themselves. Following the 

suspension of his driver's license, appellant requested and 

was given a hearing. His driving record was submitted by the 

Department as its evidence in support of the suspension of 
his license but appellant submitted no evidence refuting the 

convictions or disputing his driving record. It was 

incumbent upon him to prove he was not convicted or that the 

records or computations were not correct. 

In fact, after the appellant's official driving record 

was offered, no more was needed. In re France (1966), 147 

Mont. 283, 287, 411 P.2d 732, 734. Appellant had his day in 

court, or in the case of bond forfeitures, his opportunity 

for a day in court. There were sufficient factual findings 

to support the court's conclusion that appellant "shows a 

disregard for traffic laws and a disregard for the safety of 

other persons on the highway with such frequency of serious 

offenses as to support the Department's suspension of [his] 

driver's license." 

Appellant's license was not suspended to punish him, 

but for the protection of the public. State ex rel. Griffith 

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

197. The giving or revocation of a driver's license is 

within the police power of the State. In re France, supra, 

We affirm. 5,' 

flp ,- 

/ 

ii t 

Justice ,'' 

We concur: Y