State ex rel. Sol v. Orcutt

MR. JUSTICE SHEEHY

delivered the opinion of the Court.

Appellant-defendant, John Wayne Orcutt, appeals from an order of the District Court, Dawson County, adjudging him to be an habitual traffic offender and order him to surrender his license to operate a motor vehicle.

The County Attorney of Dawson County, under section 31-179, R.C.M.1947, filed a verified complaint seeking to have John Wayne Orcutt declared an habitual traffic offender, as defined in section 31-177(1), R.C.M.1947. The District Court issued a show cause order and Orcutt answered, asserting the complaint did not state facts sufficient to constitute a claim against him and denying both that the exhibit attached to the complaint was a copy of the certified record of his driving violations and that the certified record indicated he had accumulated more than thirty conviction points for traffic violations. Hearing on the show cause order was had September 6, 1977, and on November 15, 1977, the District Court issued an order finding Orcutt to be the person named in the complaint, finding him to be an habitual traffic offender, and ordering him to surrender immediately his driver’s license.

Defendant appeals from such order and presents four issues for review:

1. Whether the defendant was entitled to a hearing before his driving privileges were suspended for three years.

2. Whether the Montana Highway Parol had auhority to suspend his driving privileges without a hearing.

3. Whether section 31-147, R.C.M.1947, relating to suspension of driving privileges by the Montana Highway Patrol was repealed by Chapter 362, Laws of 1974 (section 31-175, et seq., R.C.M. 1947).

4. Whether the complaint to have defendant declared to be an habitual offender was invalid on its face.

The State in seeking to revoke the driver’s license relies on six claimed convictions, which, under section 31-177(1), R.C.M.1947, add up to thirty-three points calculated as follows:

Operating a motor vehicle while his license to do So was suspended or revoked

10 points (Section 31-177(l)(e), R.C.M.1947) 2 convictions .......................................20 points

Speeding

3 points (Section 31-177(l)(k), R.C.M.1947) 3 convictions ...................................... 9 points

Failure to report an accident in violation of the law

4 points (Section 31-177(l)(g), R.C.M.1947) 1 conviction ....................................... 4 points

Our consideration of the fourth issue is dispositive of the case. One of the offenses claimed against Orcutt is a conviction for failure to report an accident by the quickest means for a total of four conviction points. Under the habitual offender statute, section 31-177( l)(g), R.C.M.1947, it is provided:

“Willful failure of the driver involved in an accident resulting in property damage of $250 to stop at the scene of the accident and give the required information or to otherwise fail to report an accident in violation of the law, 4 points;”

The provisions of section 31-177( 1 )(g), above quoted, could refer to convictions under two possible statutes. They are sections 32-1207, R.C.M.1947, and 32-1208, R.C.M.1947. Under section 32-1207, a driver who is involved in an accident resulting in injury to or the death of any person, or property damage to an apparent extent of $100.00 or more is required immediately by'the quickest means of communication to give notice of the accident to the local police department or sheriff. Under section 32-1208, R.C.M.1947, the driver of a vehicle involved in an accident resulting in bodily injury to or death of any person, or total property damage to an apparent extent of $250.00 is required to give a written report of that accident to the Highway Patrol supervisor.

Orcutt’s driving record, which was submitted to the District Court as exhibit one, shows an abstract of court record from a justice of peace court in Culbertson, in which the violation is recorded as “32-1207, failed to report accident quickest means”. No other information is given with respect to this charge, particularly the date of the alleged charge, the place it occurred, the arresting officer, but most importantly, that there was bodily injury or death involved or that apparent property damage in the amount of $100.00 or more was incurred. Each other claim of violation is supported by a copy of a summons, but in the case of this claimed conviction, the summons is not appended and no other information appears in the record respecting this .claimed violation. There is only number reference to a summons with no other information attached.

The District Court therefore assumed, without proof before it, as we must also, assume, if we feel the charge is substantiated, that the conviction under section 32-1207, involved death, injury to a person, or property damage in the amount of $100.00 or more. There is no proof thereof in the record. We hold therefore, that there was insufficient record to substantiate the conviction for failure to report an accident by the quickest means. This means a reduction of four points charged against Orcutt leaving a total of twenty-nine, and under section 31-177(1), R.C.M.1947, thirty or more points are required before defendant can be considered an habitual offender.

One other point raised by Orcutt in his appeal is that the record which was forwarded to the court and which constitutes exhibit no. 1 is not a “certified record” as required by section 31-181, R.C.M.1947. That section makes admissible as evidence official abstracts of the records of convictions and bond forfeitures in the custody of the administrator, which are “. . . certified in writing by the administrator to be a correct apcount of the said convictions and bond forfeitures . . .”. In this case, the record forwarded by the administrator of the Highway Patrol simply recited that it was “certified”. While we do not decide this case on that point, we call to the attention of the administrator that his certificate of the record should include the statement set forth in the statute that it is a correct account of the convictions and bond forfeitures.

With respect to the issue raised by Orcutt that he was not accorded a hearing by the District Court, we find that the record does indicate Orcutt was given a hearing based on the issues framed by the verified complaint and his written answer thereto. The issues with respect to the constitutionality of the driver’s license suspension procedures of Montana Highway Patrol, under section 31-147, R.C.M.1947; the authority of the Highway Patrol; and the effect of the subsequent enactment of section 31-163, R.C.M.1947, were not framed by the pleadings below, and no other record indicates that they were considered by the District Court. Therefore, we will not consider such issues for the first time on appeal. Francis v. Heidel (1937), 104 Mont. 580, 68 P.2d 583.

The order of the District Court is reversed.

MR. JUSTICES DALY and SHEA concur.