No. 85-020 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1955 

JOSEPH P. STIFFARM, 

Petitioner and Appellant, 

WILLIAM F. FUROIS, as Chief 

of the State of Montana, 

Department of Justice, lllotor 

Vehicle Division, et al., 

Respondents. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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

Montana 

For Respondents: 

Barbara Claassen, Assistant Attorney General, Helena, 

Montana 

Submitted on Briefs: May 3, 1985 

Decided: August 15, 1985 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Joseph Stiffarm appeals from an order of the District 

Court affirming the one-year revocation of his driver ' s 

license by the Montana Motor Vehicle Division of the 

Department of Justice. 

On February 5, 1984, appellant was arrested for the 

offense of driving under the influence of a 1 cohol. The 

appellant refused to submit to a chemical test to determine 

the alcohol concentration of his breath. Appellant had 

previously refused the chemical test in March of 1982. The 

Motor Vehicle Division invoked section 61-8-402, MCA which 

requires the revocation of a driver's license for one year 

upon a second or subsequent refusal to submit to a chemical 

test within five years of a previous refusal. 

On September 13, 1984, the appellant filed a petition 

for writ of mandamus and claimed that the application of the 

mandatory revocation provision of section 61-8-402, MCA was 

improper because only one of the offenses upon which the 

revocation of his license was based, occurred after the 

effective date of the amendment. The District Court ordered 

the State to either return the appellant's driver's license 

or to appeal the determination. Following a hearing, the 

District Court affirmed the Motor Vehicle Division's 

application of section 61-8-402, MCA and the writ of mandamus 

was vacated. 

The dispositive issue before this Court is whether 

section 61-8-402, MCA, which requires revocation of a 

driver's license for one year upon a subsequent refusal to 

submit to a chemical test within five years of a previous 

refusal, was properly applied. 
Section 61-8-402, MCA provides: 

" (1) Any person who operates a motor 

vehicle upon ways of this state open to 

the public shall be deemed to have given 

consent, subject to the provision of 

61-8-401, to a chemical test of his 

blood, breath, or urine for the purpose 

of determining the alcoholic content of 

his blood if arrested by a peace officer 

for driving or in actual physical control 

of a motor vehicle while under the 

influence of alcohol . 

"(3) If a resident driver under arrest 

refuses upon the request of a peace 

officer to submit to a chemical test 

designated by the arresting officer as 

provided in subsection (1) of this 

section, none shall be given, but the 

officer shall, on behalf of the division, 

immediately seize his driver's license. 

The peace officer shall forward the 

license to the division, along with a 

sworn report that he had reasonable 

grounds to believe the arrested person 

had been driving or was in actual 

physical control of a motor vehicle upon 

ways of this state open to the public, 

while under the influence of alcohol and 

that the person had refused to submit to 

the test upon the request of the peace 

officer. Upon receipt of the report, the 

division shall suspend the license for 

the period provided in subsection (5). 

" (5) - The following ~ - suspension -. .- and 

revocation periods are applicable upon 

refusal - to submit - to - a chemical test: 

" (a) upon - a first refusal, - a suspension 

- of 90 days -- with no provision - for - a 

restricted probationary license; 

" (b) upon a second or subsequent 

refusal withic 5 years 07 a revious 

refusal, as determined -- from th; rzcord of 

- the division, - a revocation -- of 1 year with 

- no provision - for - a restricted 

probationary license. " (Emphasis 

supplied.) 

Prior to October 1, 1983, Montana law provided for a 

sixty-day suspension of an individual's driver's license for 

failure to take a chemical test. Section 61-8-402, MCA 
(1981). In 1983, section 61-8-402, MCA was amended, changing 

the sixty-day suspension period to ninety-days. Section 

61-8-402 (5) (a), MCA. In addition, the amended version 

provided for mandatory revocation of the license of a driver 

who has refused the chemical test a second time within five 

years of the previous refusal. Section 61-8-402 (5) (b) , MCA. 

The appellant argues that section 61-8-402(5), MCA, 

should not be applied to require a revocation of his license. 

The appellant argues that he must be allowed a "final 

refusal" under the amended version of section 61-8-402 (5) , 

MCA before his license can be revoked based on a second or 

subsequent refusa 1. Moreover, the appellant maintains that 

section 1-2-109, MCA, which provides "no law contained in any 

of the statutes in Montana is retroactive unless expressly so 

declared," precludes retroactive application. 

We find that section 61-8-402, MCA, is void of any 

language which expresses an intent to have it applied 

retroactively. However, we also find that section 61-8-402, 

MCA does not fall within the definition of a retroactive law. 

No sanction was imposed on the first refusal occurring 

prior to the effective date. Rather, it served as a 

condition for imposing the one-year revocation for the 

subsequent refusal. The statute requires revocation of 

appellant's license in response to his refusal in February of 

1984 because it was a repetitive refusal. In Sanchez v. 

State Dept. of Rev. Motor Veh. (Colo.App. 1983), 667 P.2d 

779, a most similar sequence occurred. The Colorado Court of 

Appeals likewise upheld the mandatory revocation of a 

driver's license upon a second conviction of driving while 

ability impaired as applying to a case in which the second 

conviction occurred after the effective date of the statute, 
but the first offense occurred prior to the effective date of 

the statute. "This mode of statutory operation is not 

retroactive, nor does it constitute an ex post facto law in a 

criminal setting." Sanchez, supra, 667 P.2d at 780; see also 

Gryger v. Burke (1948), 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 

1683. We are in accord with rulings from courts from other 

jurisdictions that an amended statute which is applied to a 

factual situation which occurred prior to the enactment of 

the amendment is not viewed as retroactive in application. 

See Nix v. Tice (Colo.App. 1980), 607 P.2d 399; McCartney v. 

West Adams County Fire Protection District (Colo. App. 1978) , 

574 P.2d 516; Shoemaker v. Atchison (Ala.Civ.App. 1981), 406 

So.2d 986. 

Accordingly, we hold that the one-year revocation of 

the appellant's driver's license as mandated by section 

61-8-402, MCA was proper. The judgment of the District Court 

is affirmed. 

We concur: /;I