No. 85-75 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF THE PETITION 

OF PAUL J. BURNIIAI", 

Petitioner. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen, Asst. Atty. General, Helena 

Craig R. Buehler, Fergus County Attorney, Lewistown, 

Montana 

For Respondent : 

Torger S. Oaas, Lewistown, Montana 

Submitted on ~riefs: May 30, 1985 

Decided: September 10, 1985 

SEP I 0 7985 

~iled: 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal by the State of Montana from an order 

of the District Court, Tenth Judicial District, Fergus 

County. We reverse. The facts are as follows. 

On November 3, 1984, r~spondent Paul. J. Burnham was 

arrested for driving under the influence of alcohol. At the 

time of his arrest he refused to submit to a breath test to 

determine the level of his intoxication. Upon receipt of a 

sworn report by the arresting officer indicating the 

respondent's refusal, the Motor Vehicle Division of the 

Department of Justice, in accordance with S 61-8-403, MCA 

notified respondent in a letter dated November 14, 1984, that 

his driver's license was suspended pursuant to S 61-8-407, 

MCA, Montana's implied consent statute. The letter indicated 

that for a first refusal to submit to a breath test 

S 61-8-402 (5) (a), MCA, mandates "a suspension of 90 days with 

no provision for a restricted probationary license.'' 

Respondent's license was suspended for the period November 6, 

1984 to February 3, 1985. 

On November 15, 1984, respondent pled guilty to the 

offense of driving under the influence of alcohol or drugs 

(DUI), in violation of 5 61-8-401, MCA. Section 61-5-208(2), 

MCA, provides that a person convicted of a first offense DUI 

is to have his license suspended for six months. However, 

S 61-11-101 (2) , MCA, provides that, upon the recommendation 

of the court with jurisdiction over the offense, the Division 

of Motor Vehicles "shall issue a restricted probationary 

license unless the person otherwise is not entitled to a 

Montana operator's or chauffeur's license." 
Thereafter, on November 26, 1984, Burnham filed a 

petition pursuant to § 61-8-403, MCA, with the District 

Court, Fergus County. The purpose of the petition was to 

procure a probationary license needed for his employment. On 

December 7, 1984 the District Court issued the following 

order: 

The petition in the above entitled matter 

having come before the court pursuant to 

proper notice under 61-8-403 M.C.A. and 

the court being advised that petitioner, 

in fact, pled guilty to a violation of 

61-8-401 M.C.A. within a week of 

initially refusing to take a breath test; 

it is hereby ordered under 61-8-401 

M.C.A. that petitioner's plea of guilty 

constitutes a withdrawal of his refusal 

to take a breath test under 61-8-403 

M.C.A. 

The Motor Vehicle Division filed a motion for rehearing 

of this matter on December 14, 1984, pursuant to Rule 60(b), 

M.R.Civ.P., on the basis that the Division should be relieved 

from the order. The motion was not ruled on and therefore 

was deemed denied after 45 days from its filing in accordance 

with Rule 60 (c) , M.R.Civ.P. The Motor Vehicle Division 

appeals the denial of its motion for rehearing and requests 

relief from the December 7, 1984, order of the District 

Court. 

Before considering the substantive issue of this appeal 

we direct our attention to several procedural issues raised 

by Burnham. 

First, Rurnham argues that because the Motor Vehicle 

Division failed to file an undertaking for costs on appeal as 

required by Rule 6, M.R.App.Civ.P., this appeal should be 

dismissed under Rule 4 M.R.App.Civ.P. He has failed to 

notice, however, that 25-1-402, MCA, specifically exempts a 

governmental entity, the Motor Vehicle Division in this case, 
from the requirement to file an undertaking. Second, he 

seeks the dismissal of this appeal as not being timely filed. 

He argues that the time for filing of notice of appeal 

expired 30 days after the December 7, 1984, order was filed. 

However, we consider this only a 60(b) motion. The full time 

for appeal then commences to run upon the granting or denying 

of the motion to alter or amend the judgment. 

It is true, as Burnham contends, that the State was not 

as careful as it should have been in making its motion of 

December 14, 1984. In the first place the motion was 

mistitled. The State obviously was making a Rule 6O(b), 

M.R.Civ.P. motion for relief from the order of December 7, 

1984, and was asking for a rehearing to present its argument. 

The request for a rehearing was tangential to the real. 

purpose of the motion. Further, the State failed to identify 

the statutory basis for its motion until its notice of appeal 

filed on February 19, 1985. However, despite these defects, 

the State did identify with particularity the grounds for its 

motion and the relief sought. Therefore the State complied 

with Rule 7 (b) , M.R.Civ.P. Whatever flaws there may be in 

the State's motion are not grounds for dismissal of this 

appea 1. 

Finally, Burnham argues for dismissal because of an 

alleged failure of the State to object to the December 7, 

1984 order. Rule 2, M.R.App.Civ.P., states: 

Upon appeal from a judgment, the court 

may review the verdict or decision, and 

any intermediate order or decision 

excepted or objected to within the 

meaning of Rule 46 of the Montana Rules 

of Civil Procedure, which involves the 

merits, or necessarily affects the 

judgment, except a decision or order from 

which an appeal might have been taken. 

Rule 46, M.R.Civ.P., states: 
Formal exceptions to rulings, orders, or 

findings of the court are unnecessary; 

but for all purposes it is sufficient 

that a party, at the time the ruling or 

order of the court is made or sought, 

makes known to the court the action which 

he desires the court to take, or his 

objection to the action of the court and 

his grounds therefor; and, if a party has 

no opportunity to object to a ruling or 

order at the time it is made, the absence 

of an objection does not thereafter 

prejudice him. 

The hearing on the petition filed by respondent was 

held in the judge's chambers. There was no transcript made 

of the hearing. We know from a minute entry of the court 

that Burnham and attorneys for the State were present and 

presumably advanced their respective positions. We do not 

know if the court made its ruling immediately upon close of 

arguments so we do not know if the State's counsel had 

opportunity to make an immediate objection. We presume that 

if State's counsel had the opportunity to object he did so. 

Absent that opportunity, as Rule 46 M.R.Civ.P. provides, the 

State obviously is not prejudiced by failing to object; but 

in any event the State objected by filing a motion for 

rehearing in the District Court. The scant record i.n this 

case does not indicate a violation by the State of the above 

quoted rules and reveals no basis whatsoever for a dismissal 

of this appeal. 

The substantive issue presented is whether the District 

Court properly ordered that Burnham's plea of guilty to the 

offense of driving under the influence of alcohol or drugs 

constituted a withdrawal of his refusal to take a breath test 

under Montana's implied consent statute. Since we find that 

there is no connection between 5 61-8-401, MCA, (prohibiting 

the operation of a motor vehicle while under the influence of 

alcohol or drugs) and $ 61-8-402, MCA, (requiring consent to 
a chemical test to determine blood alcohol content) the order 

of the District Court is reversed. Section 61-8-402 provides 

in pertinent part as follows: 

(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 provisions 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. The test shall be 

administered at the direction of a peace 

officer having reasonable grounds to 

believe the person to have been driving 

or in actual physical control of a motor 

vehicle upon ways of this state open to 

the public while under the influence of 

alcohol. The arresting officer may 

designate which one of the aforesaid 

tests shall be administered. 

(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; 
We have held on several occasions that the revocation 

of a driver's license is a civil sanction, not a criminal 

penalty. State ex rel. Majerus v. Carter (Mont. 1984), 693 

P.2d 501, 41 St.Rep. 2468; State ex re1 Griffith v. Brasthern 

(Mont. 19831, 658 P.2d 410, 40 St.Rep. 194; In re France 

(1966), 147 Mont. 283, 411 P.2d 732. This is evident from a 

reading of S 61-8-401, MCA, which states that the punishment 

for driving under the influence of alcohol or drugs is 

provided for in S 61-8-714, MCA; S 61-8-714, MCA, makes no 

provision for the revocation of a driver' s license. This is 

the basis for our past findings that the purpose or the 

suspension of a driver's license is not punishment but is the 

protection of the public. See Brusthern and France, supra. 

Other courts have considered implied consent statutes 

similar to ours and have distinguished them from criminal 

statutes that proscribe driving under the influence of 

alcohol or drugs. The Oklahoma Supreme Court has stated "the 

well recognized rule . . . that the acquittal of a defendant 

in the criminal matter on the charge of driving under the 

influence of intoxicating liquor is not a bar to the 

suspension of the driver's license and that such finding has 

no bearing on the civil proceedings revoking his driver's 

license under the Implied Consent Statutes." Marquardt v. 

Webb (Okla. 1976), 545 P.2d 769, 772. In an earlier case the 

same court stated: 

The implied consent law is not a criminal 

proceeding. It is a civil administrative 

proceeding separate and distinct from the 

criminal action on a charge of driving 

while intoxicated. Each proceeds 

independently of the other . . . The fact 

that in the criminal proceedings the 

driver is not proven beyond a reasonable 

doubt to have been driving while 

intoxicated has no bearing on civil 

proceedings under the implied consent 
statutes revoking his driver's license 

for refusal to submit to a chemical test. 

Robertson v. State ex rel. Lester (Okla. 1972), 501 P.2d 

1099, 1103. Similarly, the Supreme Court of Minnesota has 

stated that: 

[rlevocation under the implied-consent 

law is essentially civil in 

nature . . . It is imposed 

administrative1.y by the commissioner of 

public safety regardless of the outcome 

of the criminal proceeding arising out of 

the same incident and is triggered by the 

refusal to submit to chemical testing. 

State Dept. of Public Safety v. Mulvihill (Minn. 1975), 227 

N.W.2d 813, 818. Also the Supreme Judicial Court of Maine, 

responding to a series of questions from the Maine 

legislature, found that it would be proper for that state to 

adopt a law suspending a person's license for refusing to 

submit to a chemical test to determine blood alcohol level. 

The suspension would be valid "whether or not the person is 

subsequently convicted of the offense charged. " Opinion of 

the Court (Me. 1969), 255 A.2d 643, 649. ina ally, the 

Missouri Court of Appeals has stated: 

The purpose of [the implied consent law], 

which authorizes license revocation, is 

to protect the public, not to punish the 

licensee. [Citation omitted.] For even 

though a driver may be acquitted of the 

criminal charge of operation of a vehicle 

while intoxicated, his license 

nevertheless may be revoked for failure 

to submit to the test. The operation of 

a motor vehicle while intoxicated may 

give rise to two proceedings, one 

criminal or quasi-criminal [breach of 

statute or ordinance], and the other 

civil [revocation of 1 icence] --each 

proceeding independent of the other. 

Tolen v. Missouri Department of Revenue (Mo.App. 1978), 564 

We agree with our sister jurisdictions that have 

considered this matter. Respondent's refusal to submit to a 
chemical test is an issue separate and distinct from whether 

or not he was guilty of DUI. There is no question that 

respondent refused to take the breath test requested by the 

officer. Section 61-8-402, MCA is very clear that the 

officer was required to make a sworn report and the Division 

was required to suspend respondent's license for 90 days 

(since it was a first refusal) with no possibility of a 

probationary license. There is nothing in this section, or 

any other section of the code, that allows a withdrawal of a 

refusal to submit to a chemical test. The fact that Burnham 

pled guilty to DUI and faced a penalty for that offense is 

unrelated to his refusal to take a chemical test and the 

sanction imposed therefor. 

Respondent writes in his brief: 

[I] t is hard to understand why the State 

has appea led. Apparently it is 

attempting to obtain a ruling that would, 

in effect, make it possible for the 

Department of Justice, Motor Vehicle 

division to get a suspension of drivers 

[sic] license for 90 days plus six months 

if one refused to take a breath test and 

is convicted of driving under the 

influence. 

First, we assume that the State has appealed in order to 

protect the integrity of the implied consent statute, the 

purpose of which is to aid in the battle against drunk 

driving. Second, Burnham has run afoul of two statutes, both 

of which provide for the suspension of his driver's license. 

Section 61-5-208(2), MCA, provides that a person guilty of 

first offense DUI, as Burnham was in this case, is to have 

his license suspended for six months but can, pursuant to 

S 61-11-101 (2) , receive a restricted probationary license on 

the recommendation of the sentencing court. As noted, 

refusal to give consent under the implied consent statutes 
results in a 90 day suspension with no provision for a 

probationary license. A violation of both the DUI statutes 

and the implied consent statute means that the suspensions 

run concurrently. In this case Burnham should not have been 

eligible for a probationary license until the 90 day implied 

consent suspension had been completed. 

We hold that the District Court order of December 7, 

1984 was in error and the suspension of respondent's driver's 

license is hereby reinstated For the balance of the 90 day 

period as provided in § 61-8-402, MCA. 

We concur: A