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                                                                No. 97-638




                           IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                              1998 MT 218




                                                         MICKY HAWMAN,




                                                      Petitioner and Appellant,




                                                                       v.




                                                 STATE OF MONTANA, ex rel.,

                                              DARRELL E. BECKSTROM, Chief

                                            DRIVER IMPROVEMENT BUREAU,




                                                   Respondent and Respondent.




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                                                             APPEAL FROM: District Court of the Thirteenth Judicial
                                                                                 District,

                                                 In and for the County of Carbon,

                                     The Honorable Russell C. Fagg, Judge presiding.




                                                     COUNSEL OF RECORD:




                                                              For Appellant:




                              Brad L. Arndorfer; Arndorfer Law Firm, Billings, Montana




                                                            For Respondent:




                                          Hon. Joseph P. Mazurek, Attorney General

                               Jennifer Anders, Ass't Attorney General, Helena, Montana




                             Gary R. Thomas; Thomas Law Office, Red Lodge, Montana


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                                                Submitted on Briefs: July 23, 1998




                                                     Decided: September 3, 1998

                                                                     Filed:




                                    __________________________________________

                                                                     Clerk

                     Justice W. William Leaphart delivered the Opinion of the Court.




¶ Appellant Micky Hawman was arrested for driving under the influence of alcohol
on November 21, 1996. The arresting officer read him the implied consent law.
Hawman refused to take a breath test and his license was seized pursuant to § 61-8-
402(4), MCA. The following evening, the officer gave Mr. Hawman notification of the
suspension of his driving license privileges. The officer did not issue a five-day
driving permit under § 61-8-402(5), MCA.

¶ Hawman filed a petition in District Court pursuant to § 61-8-403, MCA. The
District Court denied his petition and he appealed to this Court. We affirm the
decision of the District Court.


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¶ Under Montana law, a person is considered to have given consent to a test of his/
her blood or breath for purposes of determining the presence of alcohol or drugs in
the body. Section 61-8-402(1), MCA. Refusal to take the requested test results in
immediate seizure of the person's license. The license is then suspended for a
specified period of time. Sections 61-8-402(4) and (6), MCA. Hawman relies on the
provisions of subsection (5), which provide: "Upon seizure of a driver's license, the
peace officer shall issue, on behalf of the department, a temporary driving permit,
which is valid for 5 days following the date of issuance and shall provide the driver
with written notice of the license suspension or revocation and the right to a hearing
provided in 61-8-403." Section 61-8-402(5), MCA. It is undisputed that the peace
officer did not issue Hawman a temporary driving permit. As a consequence of that
omission, Hawman contends that he is entitled to have his license reinstated.

¶ If an individual believes that the officer lacked statutory authority to request the
test in the first instance, he may challenge the license suspension in district court. See
§ 61-8-403, MCA. The scope of a hearing under § 61-8-403, MCA, is limited to the
following issues:



(4)(a) The court shall take testimony and examine the facts of the case, except that the
issues are limited to whether:

(i) a peace officer had reasonable grounds to believe that the person had been driving or
was in actual physical control of a vehicle upon ways of this state open to the public while
under the influence of alcohol, drugs, or a combination of the two and the person was
placed under arrest for violation of 61-8-401;

(ii) the person is under the age of 21 and was placed under arrest for a violation of 61-8-
410;

(iii) the officer had probable cause to believe that the person was driving or in actual
physical control of a vehicle in violation of 61-8-401 and the person was involved in a
motor vehicle accident or collision resulting in property damage, bodily injury, or death;
and

(iv) the person refused to submit to one or more tests designated by the officer.


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Section 61-8-403(4)(a), MCA (emphasis added).



¶ Subsection (4)(b) then goes on to provide that "[b]ased on the above issues and no
others, the court shall determine whether the petitioner is entitled to a license or
whether the petitioner's license is subject to suspension or revocation." Section 61-8-
403(4)(b), MCA.

¶ Although Hawman filed a petition under § 61-8-403, MCA, he did not raise any of
the issues enumerated by the statute. Rather, Hawman alleged that the arresting
officer failed to issue him a temporary driving permit and requested that his license
be reinstated as a remedy for that omission. The District Court recognized that its
scope of review was limited by the express provisions of § 61-8-403, MCA, and
refused to consider the officer's failure to issue a temporary permit as a basis for
reinstating Hawman's license.

¶ We have strictly construed the provisions of § 61-8-403(4)(a), MCA, and have held
that the Legislature clearly intended to limit the issues that a court may consider on
appeal pursuant to that statute. In Blake v. State (1987), 226 Mont. 193, 735 P.2d 262,
we held that the trial court could not consider the issue of hardship as a mitigating
factor in granting a restricted or probationary license. See also Thompson v.
Department of Justice (1994), 264 Mont. 372, 871 P.2d 1333. The District Court
correctly concluded that it had no jurisdiction under § 61-8-403, MCA, to consider
issues other than those specifically listed in the statute. Without addressing the
question of whether some other legal remedy may be available to Hawman, we hold
that an appeal under § 61-8-403, MCA, does not allow for reinstatement of a driver's
license due to the officer's failure to issue a temporary license under § 61-8-402(5),
MCA.

¶ Affirmed.



/S/ W. WILLIAM LEAPHART

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We concur:



/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER




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