No, 84-496 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF ERNEST THOMAS 

VINBERG, Petitioner. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The EIonorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morrison, Barron & Young; Robert C. Melcher argued, 

Havre, Montana 

For Respondent : 

Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen argued, Asst. Atty. General 

Ronald W. Smith, County Attorney, Havre, Montana 

Submitted: April 15, 1985 

Decided: May 2, 1985 

S& - / /j7/ h,7%&se&,J 

Clerk 
Mr. Justice John C. Sheehy d.elivered the Opinion of the 

Court. 

Ernest Vinberg appeals from an order of the Twelfth 

Judicial District, Hill County, upholding the suspension of 

his license by the Motor Vehicle Division. We affirm the 

District Court. 

On August 25, 1-984 Vinberg was arrested for driving 

und.er the influence of alcohol. The arresting officer seized 

Vinberg's driver's license and took him to the Havre police 

station where he refused the breath test for alcohol required 

by the implied consent statute, § 61-8-402, MCA. The 

arresting officer incorrectly returned Vinberq's license to 

him and did not issue him a temporary license. The officer 

did not follow the procedure mandated by § 61-8-402 when he 

returned Vinbergls license; he should have seized the license 

and issued Vinberg a 72 hour temporary driving permit. 

The officer, otherwise correctly following § 

61-8-402(3), sent Motor Vehicle Division (MVD) a sworn 

statement that he had reasonable grounds for believing 

Vinberg drove under the influence of alcohol and that Vinberg 

had refused a chemical test. On August 29, 1984 MTTD sent 

Vinberg a suspension order informing him that his license was 

suspended for 90 days in accordance with § 61-8-402 (5) , MCA, 

and informing him of his appeal rights. Until he received 

this letter Vinberg continued to drive. On August 31, 1984 

he went to his attorney and, according to his testimony, 

"turned in his license." He did not drive from August 31, 

1984 until September 5, 1984 when he petitioned for a hearing 

and the District Court issued a stay order. A hearing was 

held on September 24, 1984 and the District Court denied 
Vinberg's appeal on October 3, 1984. He retains his license 

pending this appeal. 

The issue Vinberg raises on appeal is whether the State 

may suspend an individual's license pursuant to 5 61-8-402, 

MCA, when the arresting officer fails to seize the 

individual's license and fails to issue a 72 hour temporary 

driving permit as required by B 61-8-402(4). Vinberg argues 

that the statute is clear and unambiguous concerning issuing 

a 72 hour permit; therefore not issuing it is fatal to the 

enforcement of the statute. He also argues that the failure 

to issue a 72 hour permit results in a denial of his due 

process rights so that the State is precluded from suspending 

his license. 

We begin by agreeing with Vinberg that the statute 

clearly and unambigously requires a 72 hour temporary driving 

permit to be issued. However the officer's error did not 

deprive Vinberg of property because, although the State 

failed to issue him a temporary permit, it also failed to 

seize his license. An error in enforcing a statute does 

not immediately preclude enforcement of the entire statute. 

Vinberg is only entitled to relief if he were prejudiced by a 

denial of due process. 

This Court need not reach the issue of whether a denial 

of due process precludes suspendinq a driver's license 

because we find Vinberg received due process. The real issue 

in this case is whether a hearing after suspension rather 

than before, which was the ultimate effect of the failure to 

issue a 72 hour permit, deprived Vinberg of his 

constitutional right to due process. Although SS 61-8-402 

and 403, MCA, provide a mechanism for a hearing before 

suspension, in this case Vinberg's license was suspended 
before he had a hearing. However, we do not find this to be 

an unconstitutional denial of due process. The United States 

Supreme Court, in Mackey v. Montryn (1979), 443 U.S. 1, 99 

S.Ct. 2612, 61 L.Ed.2d 321, gave the criteria for determining 

if the timing of a hearing on the suspension of a driver's 

license satisfies due process. They applied a three-prong 

balancing test stated in Mathews v. Eldridge (1976) , 424 U.S. 

319, 335, 96 S. Ct. 893, 47 L.Ed.2d 18, to determine what 

process is due to protect against erroneous deprivation of 

property by administrative action. They balanced the private 

interest that will be affected, the risk of error, and the 

government's interest.. The United States Supreme Court 

concluded that deprivation of a driver's license does not 

require a presuspension hearing, "We conclude, as we did in 

Love, that the compel3 ing interest in highwey safety 

iustif ies the [State] in making summary suspension effective 

pending the outcome of the prompt post-suspension hearing 

avail-able." Mackey at 19, at 335. 

Vinberg did not have a constitutional right to a 

pre-suspension hearing; due process is satisfied by a prompt 

post-suspension hearing. The timing of Vinberg's hearing 

satisfied the criteria of Mackey for availability of a prompt 

post-suspension hearing. His license was suspended August 

31, 1984, he stayed that suspension September 5, 1984 and was 

given a hearing September 24, 1984. 

Vinberg also makes a notice argument. He argues that 

the State's failure to issue him a 72 hour permit resulted in 

failure to give notice of his right to a hearinq regarding 

the suspension of his license. It is true that on August 31, 

1984, when MVD suspended his license and notified him of his 

appeal rights, he did not receive 72 more hours to seek a 
stay. However, although Vinberg's license was suspended 

before a hearing was held, that was caused by his choice of 

.action, not the State's action. 

Vinberg knew he had been stopped for driving under the 

influence. He is charged with the knowledge that when 

stopped with probable cause for driving und-er the influence 

his license would be suspended if he refused to consent to a 

chemical test. Section 61-5-110, MCA, provides in part: 

"The division shall examine every applicant for an 

operator's or chauffeur's license . . . . Such 

examination shall include a test of the applicant's . . . knowledge -- of the traffic --- laws of this state, . . .. (Emphasis added.) 

Vinberg simply cannot argue that the 72 hour permit was 

necessary to give him notice that the State would suspend his 

license. 

The record is unclear about whether he had. notice of his 

right to appeal. Vinberg urges us to find that failure to 

inform him of that right precludes suspension. We decline to 

do so. A petition to a court for a stay is not predicated on 

a 72 hour permit. He continued in possession of his driver's 

license until the action of the MVD for suspension. He was 

then given a prompt hearing and a temporary stay of 

suspension. He has no grounds to complain about lack of 

notice of appeal rights at the outset. 

We Concur: