No, 84-496 INTHE SUPREME COURT OF THE STATE OFMONTANA

INTHE MATTER OF ERNEST THOMAS VINBERG, Petitioner.

APPEAL FROM: DistrictCourtof the TwelfthJudicial District, Inand for the Countyof Hill, TheEIonorableChanEttien, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Morrison, Barron & Young; RobertC. Melcher argued, Havre, Montana

For Respondent: MikeGreely, AttorneyGeneral, Helena, Montana BarbaraClaassenargued, Asst. Atty. General RonaldW. Smith, CountyAttorney, Havre, Montana

Submitted: April 15, 1985 Decided: May 2, 1985

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# S& /j7/ h,7%&se&,J ClerkMr. 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 DistrictCourt. On August 25, 1-984Vinberg was arrested for driving und.erthe influence of alcohol. The arresting officer seized Vinberg's driver's license and took him to the Havre police stationwhere 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 returnedVinberglslicense;he shouldhave seized the license and issuedVinberg a 72hour temporary drivingpermit. 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 droveunder the influence of alcohol and thatVinberg had refused a chemical test. On August 29, 1984 MTTD sent Vinberg a suspension order informinghim that his licensewas 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, 1984until 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 deniedVinberg's appeal on October 3, 1984. He retainshis license pending this appeal. The issue Vinberg raises on appeal iswhether 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 requiresa 72hour 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 dueprocess. This Court need not reach the issue of whether a denial of due process precludes suspendinq a driver's license because we find Vinberg receiveddueprocess. 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 suspendedbefore he had a hearing. However,we do not find this to be an unconstitutional denial of due process. TheUnited States Supreme Court, in Mackey v. Montryn (1979), 443 U.S. 1, 99 S.Ct. 2612, 61L.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 inMathews v. Eldridge (1976)

## , 424U.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 administrativeaction. 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 compel3ing interest in highwey safety iustifies 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 satisfiedby a prompt post-suspension hearing. The timing of Vinberg's hearing satisfied the criteria of Mackey for availabilityof a prompt post-suspension hearing. His license was suspended August 31, 1984,he stayed that suspension September 5, 1984 andwas given a hearing September 24, 1984. Vinberg also makes a notice argument. He argues that the State's failure to issuehim a 72hour permit resulted in failure to give notice of his right to a hearinq regarding the suspensionof his license. It is true that onAugust 31, 1984, when MVD suspended his license and notified him of his appeal rights, he did not receive 72 more hours to seek astay. 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-erthe 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 includea test of the applicant's



# . ..knowledge 

### -- of the traffic laws of this state, 

### ---



# .

# ... (Emphasisadded.) Vinberg simply cannot argue that the 72 hour permit was necessary to give him notice that the Statewould suspend his license. The record isunclear about whether he had.notice of his right to appeal. Vinberg urges us to find that failure to informhim of that rightprecludes suspension. We decline to do so. A petition to a court for a stay is notpredicated on
a 72hour permit. He continued inpossession 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: