### No. 85-020 

### IN THE SUPREME COURT OF THE STATEOF MONTANA 1955

JOSEPH P. STIFFARM, Petitioner and Appellant,

WILLIAM F. FUROIS,as Chief of the StateofMontana, Department of Justice,lllotor Vehicle Division,et al., Respondents.

APPEAL FROM: DistrictCourtof the Twelfth Judicial District, In and for the County of Hill, The Honorable Chan Ettien, Judgepresiding.

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 Departmentof Justice. On February 5, 

### 1984, appellant was arrested for the offense of driving under the influence of a1

### 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 testwithin fiveyears of a 

### previous refusal. On September 13, 

### 1984, the appellant filed a petition for writ ofmandamus 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 applicationof section 61-8-402,MCA and thewrit ofmandamus

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 shallbe deemed tohave 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 hisblood ifarrested by a peace officer fordrivingor inactual physical control of a motor vehicle while under the influenceof 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 thedivision, 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 tosubmit to the 

### test upon the request 

### of the peace officer. Upon receiptof thereport, the division shall suspend the license for the period provided in subsection (5).

The 

### "(5) 

## - 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 

## - -- 

# - - restrictedprobationary license; 

## "(b) upon a second or subsequent refusalwithic 5 years

## 07a revious refusal, asdetermined 

## -- from th; rzcord of thedivision, a revocation of 1year

### 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 formandatory 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 torequire 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 inany of the statutes

### inMontana 

### isretroactive unless expressly so declared," precludes retroactiveapplication. 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 fallwithin the definitionof a retroactive law. No sanction was imposed on the firstrefusal 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 inresponse tohisrefusal inFebruary 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 effectivedate of the statute. "This mode of statutory operation is not retroactive, nordoes it constitute an ex post facto law ina criminal setting." Sanchez,supra, 667P.2d at 780; seealso Grygerv. Burke (1948),334U.S. 728, 68 S.Ct. 1256,92L.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; Shoemakerv. 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, MCAwas proper. The judgment of the DistrictCourt is affirmed.

We concur: /;I