No

No. 97-638

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 218

MICKY HAWMAN,

Petitioner and Appellant,

v.

STATE OF MONTANA, ex rel., 

DARRELL E. BECKSTROM, Chief 

DRIVER IMPROVEMENT BUREAU,

Respondent and Respondent.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-638_(9-3-98)_Opinion.htm (1 of 6)4/19/2007 11:38:30 AM
No

APPEAL FROM: District Court of the Thirteenth Judicial 

District,

In and for the County of Carbon,

The Honorable Russell C. Fagg, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Brad L. Arndorfer; Arndorfer Law Firm, Billings, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General

Jennifer Anders, Ass't Attorney General, Helena, Montana

Gary R. Thomas; Thomas Law Office, Red Lodge, Montana

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-638_(9-3-98)_Opinion.htm (2 of 6)4/19/2007 11:38:30 AM
No

Submitted on Briefs: July 23, 1998

Decided: September 3, 1998

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶ Appellant Micky Hawman was arrested for driving under the influence of alcohol 

on November 21, 1996. The arresting officer read him the implied consent law. 

Hawman refused to take a breath test and his license was seized pursuant to § 61-8-

402(4), MCA. The following evening, the officer gave Mr. Hawman notification of the 

suspension of his driving license privileges. The officer did not issue a five-day 

driving permit under § 61-8-402(5), MCA. 

¶ Hawman filed a petition in District Court pursuant to § 61-8-403, MCA. The 

District Court denied his petition and he appealed to this Court. We affirm the 

decision of the District Court. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-638_(9-3-98)_Opinion.htm (3 of 6)4/19/2007 11:38:30 AM
No

¶ Under Montana law, a person is considered to have given consent to a test of his/

her blood or breath for purposes of determining the presence of alcohol or drugs in 

the body. Section 61-8-402(1), MCA. Refusal to take the requested test results in 

immediate seizure of the person's license. The license is then suspended for a 

specified period of time. Sections 61-8-402(4) and (6), MCA. Hawman relies on the 

provisions of subsection (5), which provide: "Upon seizure of a driver's license, the 

peace officer shall issue, on behalf of the department, a temporary driving permit, 

which is valid for 5 days following the date of issuance and shall provide the driver 

with written notice of the license suspension or revocation and the right to a hearing 

provided in 61-8-403." Section 61-8-402(5), MCA. It is undisputed that the peace 

officer did not issue Hawman a temporary driving permit. As a consequence of that 

omission, Hawman contends that he is entitled to have his license reinstated. 

¶ If an individual believes that the officer lacked statutory authority to request the 

test in the first instance, he may challenge the license suspension in district court. See

§ 61-8-403, MCA. The scope of a hearing under § 61-8-403, MCA, is limited to the 

following issues:

(4)(a) The court shall take testimony and examine the facts of the case, except that the 

issues are limited to whether:

(i) a peace officer had reasonable grounds to believe that the person had been driving or 

was in actual physical control of a vehicle upon ways of this state open to the public while 

under the influence of alcohol, drugs, or a combination of the two and the person was 

placed under arrest for violation of 61-8-401;

(ii) the person is under the age of 21 and was placed under arrest for a violation of 61-8-

410; 

(iii) the officer had probable cause to believe that the person was driving or in actual 

physical control of a vehicle in violation of 61-8-401 and the person was involved in a 

motor vehicle accident or collision resulting in property damage, bodily injury, or death; 

and

(iv) the person refused to submit to one or more tests designated by the officer. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-638_(9-3-98)_Opinion.htm (4 of 6)4/19/2007 11:38:30 AM
No

Section 61-8-403(4)(a), MCA (emphasis added). 

¶ Subsection (4)(b) then goes on to provide that "[b]ased on the above issues and no 

others, the court shall determine whether the petitioner is entitled to a license or 

whether the petitioner's license is subject to suspension or revocation." Section 61-8-

403(4)(b), MCA. 

¶ Although Hawman filed a petition under § 61-8-403, MCA, he did not raise any of 

the issues enumerated by the statute. Rather, Hawman alleged that the arresting 

officer failed to issue him a temporary driving permit and requested that his license 

be reinstated as a remedy for that omission. The District Court recognized that its 

scope of review was limited by the express provisions of § 61-8-403, MCA, and 

refused to consider the officer's failure to issue a temporary permit as a basis for 

reinstating Hawman's license. 

¶ We have strictly construed the provisions of § 61-8-403(4)(a), MCA, and have held 

that the Legislature clearly intended to limit the issues that a court may consider on 

appeal pursuant to that statute. In Blake v. State (1987), 226 Mont. 193, 735 P.2d 262, 

we held that the trial court could not consider the issue of hardship as a mitigating 

factor in granting a restricted or probationary license. See also Thompson v. 

Department of Justice (1994), 264 Mont. 372, 871 P.2d 1333. The District Court 

correctly concluded that it had no jurisdiction under § 61-8-403, MCA, to consider 

issues other than those specifically listed in the statute. Without addressing the 

question of whether some other legal remedy may be available to Hawman, we hold 

that an appeal under § 61-8-403, MCA, does not allow for reinstatement of a driver's 

license due to the officer's failure to issue a temporary license under § 61-8-402(5), 

MCA. 

¶ Affirmed. 

/S/ W. WILLIAM LEAPHART

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-638_(9-3-98)_Opinion.htm (5 of 6)4/19/2007 11:38:30 AM
No

We concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-638_(9-3-98)_Opinion.htm (6 of 6)4/19/2007 11:38:30 AM