Dewart v. State ( 1992 )

No. 92-019
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
JACK E. DEWART,
Plaintiff and Appellant,
THE STATE OF MONTANA, acting
through the DEPARTMENT OF JUSTICE,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Bobinski, Attorney at Law, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Peter Funk,
Assistant Attorney General, Helena, Montana
Mike McGrath, County Attorney, Helena, Montana
Justice Karla M. Gray delivered the Opinion of the Court.
Jack E. DeWart appeals from an Order of the First Judicial
District Court, Lewis and Clark County, dismissing his complaint
for declaratory and injunctive relief. We affirm.
The issue on appeal is whether the District Court erred in
concluding that 5 61-5-208(2), MCA (1989), requires a one year
driver's license revocation when an individual is convicted of a
blood alcohol concentration (BAC) violation within five years of a
driving under the influence of alcohol (DUI) conviction.
Appellant Jack DeWart (DeWart) was convicted of the offense of
DUI pursuant to 5 61-8-401, MCA, on August 13, 1986. He was
convicted of a BAC violation under 5 61-8-406, MCA, on March 6,
1991.
Following its standard practice, the Motor Vehicle Division of
the Montana Department of Justice (Department) would have revoked
DeWart1s driver's license for one year under 5 61-5-208(2), MCA,
upon receiving notice of the March 6, 1991, BAC conviction. Before
the Department could act, DeWart initiated a declaratory judgment
action seeking to have the Department's interpretation of 5 61-5-
208, MCA, declared erroneous as a matter of law and to permanently
enjoin the Department from revoking his driver's license. He
obtained a temporary restraining order preventing revocation by the
Department. The Department agreed that the temporary restraining
order would remain in effect until the court decided the issue on
the merits.
The District Court dismissed appellant's declaratory action in
2
an order dated October 29, 1991, and DeWart appealed. The parties
agreed, and the District Court ordered, that the Department be
restrained from revoking DeWart's driver's license pending
resolution of this appeal.
Did the District Court err in concluding that § 61-5-208(2),
MCA (1989), requires a one year driver's license revocation when an
individual is convicted of a BAC violation within five years of a
DUI conviction?
The District Court relied on this Court's interpretation of
5 61-5-208(2), MCA, in Horton v. State (1986), 221 Mont. 233, 717
P.2d 1108, in determining that a BAC violation within five years of
a DUI violation mandates a one year driver's license revocation.
It rejected appellant ' s argument, reasserted on appeal, that
amendments to § 61-8-714, MCA, by the 1989 Montana legislature
prohibit the use of DeWart's 1991 BAC conviction as a second
conviction under 5 61-5-208(2), MCA (1989).
Section 61-5-208(2), MCA, a civil penalty statute, has long
provided for a six month driver's license suspension upon either a
DUI or a BAC conviction and a one year revocation upon a second
conviction within five years. The appellant in Horton argued, as
does appellant here, that a BAC conviction within five years of a
DUI conviction does not equal a second offense resulting in a one
year license revocation under 61-5-208(2), MCA (1985). We
rejected that argument, stating that the statute Itis plain,
unambiguous and certain in providing that a BAC conviction
following a DUI conviction .. . results in a license revocation
for one year." Horton, 221 Mont. at 236.
DeWart argues that Chapter 476, Laws 1989, introduced as House
Bill 425, which made no change in the statutory language at issue,
so altered related criminal penalty provisions as to necessitate an
interpretation of 5 61-5-208, MCA, different from that made by this
Court in Horton in 1986. The 1989 amendments to 3 61-8-714, MCA,
the criminal penalty statute for DUI violations, added a new
subsection (6) providing that [ f] or the purpose of calcufating
subsequent convictions under this section, a conviction for a
violation of 61-8-406 [BAC violation] also constitutes a conviction
for a violation of 61-8-401 [DUI violation]." D e W a r t asserts that
this amendment, together with the absence of a corresponding
amendment to the criminal penalty statute for BAC convictions and
sketchy language from the legislative history, mandates a new
interpretation of the civil penalty statute related to, but
separate from, the criminal penalty statutes f o r DUI and BAC
violations. DeWartfs argument misses the mark.
The plain and clear language of 5 61-8-714(6), MCA (l989),
limits its application to determining D U I penalties provided for in
that section. The legislature had a clear opportunity to amend S
61-5-208, MCA, to comport with the interpretation urged by
appellant and chose not to do so. Indeed, the legislature has
amended § 61-5-208, MCA, on numerous occasions since our decision
in Horton and has never amended the language at issue here. Our
role is to ascertain and declare what is contained in a statute,
"not to insert what has been omitted.Ir Section 1-2-101, MCA.
1989, do not change or impact the language we interpreted in Horton
or our Horton decision. Therefore, w e hold that the District Court
d i d n o t err in concluding that § 61-5-208(2), MCA (1989), requires
a one year license revocation when an individual in convicted of a
BAC offense within five years of a D U I offense.
Affirmed.