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No. 14220

IN THE SUPREME COUfiT O THE STATE O MONTANA F F
1978

S A E O MlWPANA, ex rel., C o r n JOE T T F R. SOL, Administrator, mntana Highway Patrol, P l a i n t i f f and Respondent,
-VS-

JOHN WAYNE OFCUFF,

Defendant and Appellant.

Appeal frcnn:

D i s t r i c t Court of t h e Seventh J u d i c i a l D i s t r i c t , Honorable L. C. Gulbrandson, Judge presiding.

Counsel of Record: For Appellant : Gene Huntley argued, Baker, mntana For &spondent: Hon. Mike Greely, Attomey General, H e l e n a , Wntana Richard S h n t o n argued, County Attomey, G l d i v e , bbntana Tcan Dowling argued, Helena, kbntana

Sdmitted: Decided:

September 1 4 , 1978

JAN

31 9 ~ ~

Mr. Justice John C. Sheehy delivered the Opinion of the Court . Appellant-defendant, John Wayne Orcutt, appeals from an order of the District Court, Seventh Judicial District, Dawson County, adjudging him to be an habitual traffic offender and ordering 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 weresuspended for three years.
2.

Whether the Montana Highway Patrol had authority 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suspension of driving privileges by the Montana Highway Patrol was repealed by Chapter 362, Laws of 1974 (section 31+163, et seq., R.C.M. 1947).
-2-

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 31177(1), R.C.M. as follows: Operating a motor vehicle while his license to do so was suspended or revoked
R.C.M.

1947, add up to thirty-three points calculated

10 points (Section 31-177 (1)(e), 1947) 2 convictions

20 points

Speeding 3 points (Section 31-177 (1)(k), R.C.M. 1947 3 convictions Failure to report an accident in violation of the law
R.C.M.

9 points

4 points (Section 31-177 (1)(g), 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(g), R.C.M. 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(g), above quoted, could refer to convictions under two possible statutes. They are sections 32-1207, R.C.M. 1947. 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, shcws 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 impcrtantly, that there was bodily injury or death involved or that apparent property danage in the amount of $100.00 or more was incurred. Each other claim of violation

is supported by a copy of a surrmons, but in the case of this claimed conviction, the sm.ons is not appended and no other information appears in the record respecting this claimed violation. There is only a number reference to a sumtons

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. the record. There is no proof thereof in

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 forfeiturers in the custody of the administrator, which are "

. . .

certified in writing by the

administrator to be a correct account 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 constitution-

ality 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.N. 1947, were not framed by the pleadings below, and no other record indicates that they were considered by the ~istrictCourt. Therefore, we will not consider such issues for the first time on appeal. P.2d 583. The order of the District Court is reversed. Francis v. Heidel (1937), 104 Mont. 580, 68

We Concur:

Mr.

J u s t i c e John Conway H a r r i s o n d i s s e n t i n g :
I would a f f i r m t h e judgment of t h e D i s t r i c t C o u r t .

In

s o d o i n g , I must d i s c u s s t h e i s s u e s p r e s e n t e d and m r e a s o n s y f o r disagreeing with t h e majority holding. I s s u e 1. Defendant a s k s whether he w a s e n t i t l e d t o a Most 1947,

h e a r i n g b e f o r e h i s l i c e n s e was o r d e r e d s u r r e n d e r e d . a s s u r e d l y , h e was s o e n t i t l e d . S e c t i o n 31-184,
R.C.M.

mandates t h a t " t h e [ d i s t r i c t ] c o u r t s h a l l h o l d a h e a r i n g upon t h e show c a u s e o r d e r . " Based on t h e h e a r i n g , t h e c o u r t

must f i n d t h a t t h e d e f e n d a n t e i t h e r i s o r i s n o t t h e p e r s o n named i n t h e c o m p l a i n t . I f t h e f i n d i n g i s t h a t t h e defen-

d a n t i s t h e p e r s o n s o named, t h e c o u r t must t h e n make a second f i n d i n g , v i z . , whether t h e d e f e n d a n t i s a n h a b i t u a l t r a f f i c o f f e n d e r a s d e f i n e d i n s e c t i o n 3 1 - 1 7 7 ( 1 ) , R.C.M. 1947, b e f o r e a d j u d g i n g t h e d e f e n d a n t a n h a b i t u a l t r a f f i c o f f e n d e r , and o r d e r i n g him t o s u r r e n d e r t o t h e c o u r t h i s l i c e n s e t o o p e r a t e a motor v e h i c l e . The c o u r t h a s no d i s -

c r e t i o n a s t o s o a d j u d g i n g and o r d e r i n g ; once t h e d e t e r m i n a t i o n s have been made t h a t t h e d e f e n d a n t i s t h e p e r s o n named i n t h e c o m p l a i n t and t h a t t h e d e f e n d a , l t i s a n h a b i t u a l t r a f f i c o f f e n d e r , t h e c o u r t i s mandated t o f i n d and a d j u d g e t h e d e f e n d a n t a n h a b i t u a l t r a f f i c o f f e n d e r and t o o r d e r s u r r e n d e r of h i s d r i v e r ' s l i c e n s e . Defendant h i m s e l f r e f e r s u s t o s e c t i o n 31-184,
R.C.M.

1947, and b a l d l y asserts t h a t , w i t h r e s p e c t t o h i s h e a r i n g , t h e D i s t r i c t Court d i d n o t follow t h e provisions t h e r e i n . No s u p p o r t f o r t h a t a s s e r t i o n i s t o be found i n a p p e l l a n t ' s brief.
I r e c o g n i z e t h a t " t h e Due P r o c e s s c l a u s e a p p l i e s t o

t h e d e p r i v a t i o n of a d r i v e r ' s l i c e n s e by t h e S t a t e " , ~ i x o n v . Love ( 1 9 7 7 ) , 431 U.S.
E d 2d 1 7 2 , 179-80,

1 0 5 , 1 1 2 , 97 S.Ct.

1723, 1727, 52 L

c i t i n g B e l l v . Burson ( 1 9 7 1 ) , 402 U.S.

539, 91 S.Ct. 1586, 29 L Ed 2d 90, and find that due process was accorded the defendant herein. As mandated by section

31-184, R.C.M. 1947, there was a hearing, held on September 6, 1977, at which defendant was present, represented by counsel. Based on that hearing, the lower court issued an

order on November 15, 1977, which contains an unambiguous finding that the defendant Orcutt is the person named in the complaint, which finds and adjudges him to be an habitual traffic offender, and which orders him to surrender his driver's license. The court acted in conformity with the

statutory mandates, thus according defendant due process. Implicit in defendant's due process challenge is an objection, made in passing elsewhere in appellant's brief, that the District Court "simply ruled that the defendant was an habitual traffic offender without ever setting the matter for trial or otherwise giving the defendant an opportunity to contest the contents of the abstract of driving record which had been offered in evidence against him." Orcutt

thus hints at attempting to collaterally attack the convictions which spurred the proceeding to adjudge him an habitual traffic offender. That attempt must fail because "a

defendant in a[n] habitual traffic offender proceeding is not entitled to collaterally attack the validity of the convictions supporting the action by alleging the impropriety of the prior license suspension." State v. Petersen

(1976), 16 Wash.App. 77, 553 P.2d 1110, 1111-12. As did the defendant in Dixon v. Love, 431 U.S. at 113, 97 S.Ct. at 1728, 52 L Ed 2d at 181, the defendant Orcutt has had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the court's decision was based. Orcutt's driving record clearly

shows c o n v i c t i o n s , a s d e f i n e d i n s e c t i o n 3 1 - 1 7 7 ( 2 ) , R.C.M. 1947, f o r d r i v i n g w h i l e t h e p r i v i l e g e t o do s o i s suspended ( t w o ) , s p e e d i n g ( t h r e e ) , and f a i l i n g t o r e p o r t a n a c c i d e n t by t h e q u i c k e s t means ( o n e ) .
A l l c o n v i c t i o n s were w i t h i n

t h e p e r i o d of F e b r u a r y 1 0 , 1975, t o A p r i l 11, 1977, a p p r o x i m a t e l y two years--a time period w e l l w i t h i n t h e f i v e y e a r s

d u r i n g which c o n v i c t i o n s p o i n t s accumulated by a l i c e n s e e a r e c o u n t e d toward h a b i t u a l t r a f f i c o f f e n d e r s t a t u s . t i o n 3 1 - 1 7 7 ( 1 ) , R.C.M. 1947. Sec-

O r c u t t , by v i r t u e of h i s s i x

c o n v i c t i o n s , accumulated t h i r t y - t h r e e p o i n t s , c a l c u l a t e d a s follows : O p e r a t i n g a motor v e h i c l e w h i l e h i s l i c e n s e t o d o s o was suspended, 10 p o i n t s ( S e c t i o n 31-177 (1)( e ) , R.C.M. 1947)--two c o n v i c t i o n s
R.C..M.

........

.20 points

S p e e d i n g , 3 p o i n t s ( S e c t i o n 31-177 1947)--three convictions

....

(1)(k), 9 points

F a i l u r e t o r e p o r t an accident i n v i o l a t i o n s of t h e l a w , 4 p o i n t s (Section 3M77 (1)( g ) , R.C.M. 1947) --one c o n v i c tion

..................
i n t h e suspension hearing.

4 points

O r c u t t h a s had h i s day i n c o u r t and may n o t r e l i t i g a t e t h e i s s u e of g u i l t V e h i c l e Div. I s s u e 2. Zaba v . Motor

(Colo. 1 9 7 3 ) , 516 P.2d 634, 638. Defendant c h a l l e n g e s t h e a u t h o r i t y of t h e

Montana Highway P a t r o l Board t o t w i c e suspend h i s d r i v i n g p r i v i l e g e s , p u r s u a n t t o s e c t i o n 31-147,
R.C.M.

1947, t h e r e b y

c a u s i n g him t o a c c u m u l a t e twenty p o i n t s toward t h e d e s i g n a t i o n "habitual t r a f f i c offender".
R.C.M.

Section 31-177(1)(e),

1947.

R e l y i n g on B e l l v . Burson ( 1 9 7 1 ) , 402 U.S. 1586, 29 L Ed 2d 90, d e f e n d a n t a r g u e s t h a t d u e

535, 9 1 S.Ct.

p r o c e s s r e q u i r e s t h a t t h e S t a t e must a f f o r d n o t i c e and o p p o r t u n i t y f o r a h e a r i n g b e f o r e t h e t e r m i n a t i o n of t h e p r i v i l e g e t o d r i v e becomes e f f e c t i v e . Burson, which cen-

t e r e d on a Georgia s t a t u t e , t h e o n l y p u r p o s e of which w a s t o

obtain security from which to pay judgments against the licensee resulting from the accident, was distinguished in ~ixon.
he latter controls the disposition of the instant

case, because the Montana statutes under consideration here are similar to those reviewed in Dixon and decidedly dissimilar to those subject of Burson. The Highway Patrol Board is authorized by section 31147, R.C.M. 1947, "to suspend the license or driving privilege of an operator or chauffeur without preliminary hearing upon - showing % its records or other sufficient evidence a that the licensee

. . . has been

convicted with such

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