### No. 85-75 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

INTHEMATTER OF THE PETITION OF PAULJ. BURNIIAI",Petitioner.

APPEAL FROM: District Court of the Tenth JudicialDistrict, In and for the County of Fergus, The Honorable Peter L. Rapkoch,Judgepresiding.

COUNSELOF RECORD:

For Appellant:

Hon. 

### Mike Greely,Attorney General, Helena,Montana Barbara Claassen,Asst. Atty. General,Helena Craig R. 

### Buehler, FergusCounty Attorney, Lewistown, Montana

For Respondent: 

### Torger S. Oaas,Lewistown, Montana

Submitted on ~riefs:May 30, 

### 1985 Decided: September 10, 1985 

## SEPI

## 0

# 7985 ~iled:Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

This 

### isan appeal by the Stateof Montana from an order of the District Court, Tenth Judicial 

### District, Fergus County. Wereverse. The factsareasfollows. On November 3, 1984, r~spondent Paul. J. Burnham was arrested for drivingunder the influence of alcohol. Atthe 

### time of his arrest he refused to submit toa 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 notifiedrespondent ina 

### letterdated 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 dayswith

no provision for a restricted probationary license.'' Respondent's licensewas suspended fortheperiod November 6, 1984 toFebruary 3, 1985. On November 15, 1984, respondent pled guilty to the offense of driving under the influence of alcohol or drugs (DUI), inviolation of 

### 5 61-8-401, MCA. Section 61-5-208(2), MCA, provides that a person convicted of a firstoffense DUI 

### is to have his license suspended for sixmonths. However, 

### S 61-11-101 (2)

### , MCA, provides that, upon the recommendation of the courtwithjurisdiction over theoffense, theDivision 

### of Motor Vehicles "shall issue a restricted probationary license unless the person otherwise 

### is not entitled to a Montana operator's orchauffeur'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 forhis employment. On December 7, 1984 the District Court issued the following order: Thepetition 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 amotion 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 MotorVehicle Division in this case,from the requirement to file an undertaking. Second, he seeks thedismissal of thisappeal asnotbeing timely filed. He argues that the time for filing of notice of appeal expired 30 days aftertheDecember 7, 1984, order was filed. However, 

### we considerthisonly a 60(b)motion. The full

### time forappeal then commences torun upon thegrantingordenying of themotion toalteroramend thejudgment. It 

### istrue, asBurnham contends, thatthe Statewas 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 topresent 

### itsargument. The request for a rehearing was tangential to the real. purpose of themotion. Further, the State failedtoidentify the statutory basis for

### itsmotion until 

### itsnotice of appeal filed on February 19, 1985. However, despite these defects, the Statedid identifywithparticularitythegrounds 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 appea1. 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 decisionororder 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 ismade, 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 issuepresented iswhether the District Court properly ordered that Burnham's plea of guilty to the offense of driving under the influence of alcohol or drugs constituted awithdrawal of his refusal to take a 

### breath test under Montana's implied consent statute. Sincewe find that there is no connection between 5 

### 61-8-401,MCA, (prohibiting the operationof amotor vehicle while under the influence of alcohol or drugs) and $ 

### 61-8-402,MCA, (requiringconsent toa chemical test todetermineblood alcohol content) theorder of theDistrict Court 

### isreversed. Section 61-8-402 provides inpertinent part asfollows: (1) Any person who operates 

### a motor vehicle upon ways of this state open to the public shall be deemed tohave 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 hisblood if arrested by a peace officer fordrivingor inactualphysical control of a motor vehicle while under the influence of alcohol. The 

### test shallbe administered atthe direction of a peace officer having reasonable grounds to believe the person tohave 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 shallbe 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 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).

(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, 

### 41St.Rep. 2468; Stateexre1Griffith

### v. Brasthern (Mont. 19831, 658 P.2d 410, 40 St.Rep. 194; In 

### re France (1966), 147Mont. 283, 

### 411P.2d 732. This 

### is evident from a reading of 

### S 61-8-401, MCA, which states that thepunishment 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 orthe suspension of a driver's license

### isnotpunishment but 

### isthe 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 ordrugs. 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 findinghas

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. Inanearliercase the

same court stated: The implied consent law 

### isnot a criminal proceeding. It 

### isa 

### civil administrative proceeding separate and distinctfrom the criminal action on a charge of driving while intoxicated. Each proceeds independentlyof theother

# .

# .

# .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 criminalproceeding arising outof the same incidentand 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 itwould 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 ofAppeals has stated: Thepurpose of [the implied consent law], which authorizes license revocation, is to protect the public, not to punish the licensee. [Citationomitted.] For even though a driver may be acquitted of the criminal charge of operationof 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 thismatter. Respondent's refusal to submit to achemical 

### 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 tomake 

### a sworn report and theDivision

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 inthis section, 

### or any other section of the code, that allows a withdrawal of a refusal tosubmit toa chemical 

### test. The factthatBurnham 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 

### writesinhisbrief: [I] 

### t is hard tounderstand why the State has appealed. Apparently 

### it 

### is attempting toobtain 

### a rulingthatwould, in effect, make 

### it possible for the Department of Justice, Motor Vehicle division to get a suspension of drivers [sic] license for 90 daysplus sixmonths if one refused totake 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 afoulof two statutes, both of which provide forthe suspension of hisdriver's license. Section 61-5-208(2), MCA, provides that a person guilty of first offense DUI, as Burnham was in this case, 

### is tohave 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 suspensionhad 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 asprovided in § 

### 61-8-402,

### MCA.

We concur: A