                                          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:         September 1 4 , 1978

                                                   Decided:      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 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 (1)(e),
     R.C.M.    1947) 2 convictions          20 points
        Speeding
     3 points (Section 31-177 (1)(k),
     R.C.M. 1947 3 convictions               9 points
     Failure to report an accident
     in violation of the law
     4 points (Section 31-177 (1)(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(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(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, 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.     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 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.   Francis v. Heidel (1937), 104 Mont. 580, 68
P.2d 583.
     The order of the District Court is reversed.
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

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 .    Most

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.       1947,

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.            1 0 5 , 1 1 2 , 97 S.Ct.        1723, 1727, 52 L

E d 2d 1 7 2 , 179-80,          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 ob-
jection, 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 convic-
tions which spurred the proceeding to adjudge him an habi-
tual 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 impro-
priety 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 con-
nection 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 .     Sec-

t i o n 3 1 - 1 7 7 ( 1 ) , R.C.M.     1947.      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      ........                   .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    (1)(k),
         R.C..M.        1947)--three convictions                  ....   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      ..................                                        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     i n t h e suspension hearing.                  Zaba v . Motor

V e h i c l e Div.      (Colo. 1 9 7 3 ) , 516 P.2d 634, 638.

         I s s u e 2.     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".                Section 31-177(1)(e),

R.C.M.      1947.       R e l y i n g on B e l l v . Burson ( 1 9 7 1 ) , 402 U.S.

535, 9 1 S.Ct.           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

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 dis-
similar to those subject of Burson.
     The Highway Patrol Board is authorized by section 31-
147, R.C.M. 1947, "to suspend the license or driving privi-
lege 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 £re-
quency of serious offenses against traffic regulations
governing the movement of vehicles as to indicate a disre-
spect for traffic laws and a disregard for the safety of
other persons on the highways   . . ."    (Emphasis added.)
There is no procedural difficulty with such a provision.
     As the United States Supreme Court has noted, numerous
courts have sustained the suspension or revocation of
driving privileges, without prior hearing, where earlier
convictions were on the record.      Dixon v. Love, 431 U.S. at
114-15, 97 S.Ct. at 1728, 52 L Ed 2d at 181, and cases cited
therein.   In the case before us, defendant's convictions
were on the record.   If the record on which the Highway
Patrol Board relied contained a clerical error, written
objection to it would have put the Board on notice to inves-
tigate and to correct the record if need be.     Dixon v. Love,
431 U.S. at 113, 97 S.Ct. at 1728, 52 L Ed 2d at 180-81.
     Our statutes, including section 31-147, R.C.M. 1947,
like those of Illinois under consideration in ~ i x o n ,have
been enacted "to keep off the roads those drivers who are
unable or unwilling to respect traffic rules and the safety
of o t h e r s . "      Dixon v. Love, 431 U.S.                a t 1 1 5 , 97 S.Ct.          at

1729, 52 L Ed 2d a t 181.                   O r c u t t h a s d e m o n s t r a t e d such

i n a b i l i t y o r u n w i l l i n g n e s s , a s e v i d e n c e d by h i s d r i v i n g

r e c o r d r e p l e t e w i t h c o n v i c t i o n s f o r o f f e n s e s committed

w i t h i n a s h o r t p e r i o d of t i m e .      The Highway P a t r o l Board,

with an eye t o p r o t e c t i n g those unsuspecting i n d i v i d u a l s

using t h e p u b l i c thoroughfares, a c t e d p r o p e r l y i n suspending

h i s privilege t o drive.                See I n r e F r a n c e ( 1 9 6 6 ) , 147 Mont.



         I s s u e 3.    Defendant c l a i m s t h a t s e c t i o n 31-147,              R.C.M.

1947, i s u n c o n s t i t u t i o n a l having been i m p l i e d l y r e p e a l e d by

t h e enactment of C h a p t e r 362, 1974 Laws of Montana, c o d i f i e d

a t s e c t i o n s 31-175 e t s e q . , R.C.M.            1947.       T h i s argument i s

advanced i n t h e f a c e o f h i s own r e f e r e n c e t o s e c t i o n 31-189,

R.C.M.      1947, which r e a d s :

         "Nothing c o n t a i n e d i n t h i s a c t s h a l l be
         c o n s t r u e d a s t o r e p e a l , modify o r amend
         any o t h e r laws o r p a r t s of l a w s , o r any
         e x i s t i n g o r d i n a n c e o f any p o l i t i c a l sub-
         division r e l a t i n g t o the operation or
         l i c e n s i n g of motor v e h i c l e s , t h e l i c e n s -
         i n g o f p e r s o n s t o o p e r a t e motor v e h i c l e s
         o r providing p e n a l t i e s f o r t h e v i o l a t i o n
         t h e r e o f ; nor s h a l l anything i n t h i s a c t
         be construed s o a s t o preclude t h e exer-
         c i s e of r e g u l a t o r y powers of any d i v i s i o n ,
         agency, d e p a r t m e n t o r p o l i t i c a l s u b d i v i -
         s i o n of t h i s s t a t e o r of t h e f e d e r a l
         government h a v i n g t h e s t a t u t o r y power t o
         r e g u l a t e t h e o p e r a t i o n and l i c e n s i n g of
         motor v e h i c l e s and t h e l i c e n s i n g of motor
         vehicle operators. "

         Our o b l i g a t i o n i n c o n s t r u i n g a s t a t u t e i s t o l o o k a t

i t s language.          I f t h e l a n g u a g e i s c l e a r and unambiguous,
t h e r e i s nothing t o construe, f o r t h e s t a t u t e speaks f o r

i t s e l f . I f t h e meaning of t h e s t a t u t e may be d i s c e r n e d from

t h e p l a i n i m p o r t of t h e words u s e d , t h e C o u r t may n o t go

beyond t h e language and a p p l y o t h e r means of i n t e r p r e t a t i o n .

See, e.g.,        I n r e E s t a t e of B a i e r ( 1 9 7 7 ) ,     - Mont .                ,    567

P.2d 943, 34 St.Rep.               860, 863 and c a s e s c i t e d t h e r e i n .
         S e c t i o n 31-189,    R.C.M.      1947, i s c l e a r and unambiguous.

I t d o e s n o t r e p e a l s e c t i o n 31-147,      R.C.M.      1947.         This deter-

m i n a t i o n comports w i t h t h e a r t i c u l a t e d p u r p o s e of t h e a c t

r e l a t i n g t o habitual t r a f f i c offenders.

        " T h i s a c t i s p r e d i c a t e d upon t h e b e l i e f and
        p h i l o s o p h y t h a t i n n o c e n t d r i v e r s and o t h e r
        i n n o c e n t p a s s e n g e r s and p e d e s t r i a n s have a
        c o n s t i t u t i o n a l r i g h t t o l i v e , f r e e from f e a r
        of d e a t h o r i n j u r y from h a b i t u a l t r a f f i c o f -
        f e n d e r s . F u r t h e r , it i s t h e p u r p o s e of t h i s
        a c t t o r e d u c e t h e number of motor v e h i c l e
        accidents i n t h i s s t a t e , t o provide g r e a t e r
        s a f e t y t o t h e m o t o r i n g p u b l i c and o t h e r s , by
        denying t o t h e 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 h e p r i v i l e g e o f o p e r a t i n g a motor v e h i c l e
        upon t h e p u b l i c s t r e e t s and highways of t h i s
        state."           S e c t i o n 31-175, R.C.M.           1947.

        The l a n g u a g e i s s t r o n g and c l e a r - a n u n e q u i v o c a l r i g h t

t o be f r e e of t h e menace posed by h a b i t u a l t r a f f i c o f f e n d e r s

i s a f f o r d e d a l l i n n o c e n t u s e r s of t h e roadways of t h i s

state.       I n c o n t r a s t , Orcutt, a s an h a b i t u a l t r a f f i c offen-

d e r , does n o t enjoy a c o n s t i t u t i o n a l l y guaranteed i l l i m i t -

able r i g h t t o drive.          See Zaba v . Motor V e h i c l e D i v i s i o n ,

516 P.2d a t 637. The enjoyment of t h e p r i v i l e g e t o d r i v e a

motor v e h i c l e depends o n compliance w i t h c o n d i t i o n s imposed

by law and always i s s u b j e c t t o s u c h r e a s o n a b l e r e g u l a t i o n

and c o n t r o l as t h e l e g i s l a t u r e sees f i t t o impose i n t h e

e x e r c i s e of i t s p o l i c e power i n t h e i n t e r e s t of p u b l i c

s a f e t y and w e l f a r e .   S t a t e v . S c h e f f e l ( 1 9 7 3 ) , 82 Wash.2d

872, 514 P.2d 1052, 1057.                  O r c u t t h a s n o t complied w i t h t h e

c o n d i t i o n s imposed by law; h i s d r i v e r ' s l i c e n s e w a s revoked

and p r o p e r l y so.       Had h e wished t o a v o i d t h e o p e r a t i o n and

i m p a c t of t h e h a b i t u a l t r a f f i c o f f e n d e r s a c t , he s h o u l d have

r e f r a i n e d from b r e a k i n g t h e law.      S c h e f f e l , 514 P.2d a t



        Defendant seems t o a r g u e t h a t by a l l o w i n g s e c t i o n 31-

1 4 7 , R.C.M.      1947, t o s t a n d w i t h s e c t i o n s 31-175 e t s e q . ,
R.c.M. 1947, two entities, the Highway Patrol Bureau and the
~istrictCourt, will each be meting out "punishment" for the
same offense.    Defendant misconstrues the nature and purpose
of these statutes.     We reiterate:   suspension or revocation
does not constitute punishment as that term is understood in
law.    Suspension or revocation of a driver's license is for
the protection of the public.      Deprivation of the privilege
to drive is the penalty imposed by statute, a penalty imposed
for willful failure or refusal to obey laws relating to
motor vehicle traffic and imposed to protect others.      In re
France, 147 Mont. at 288, 411 P.2d at 734; Anderson v.
Comrn'r of Highways (1964), 267 Minn. 308, 126 N.W.2d 778,
783-84, 9 A.L.R.3d    746, 754.   See also Barkett v. Lester
(Okla. 1971) , 490 P. 2d 249.
       It is well settled that in a civil proceeding, which
that to declare an individual an habitual traffic offender
is, no question of double jeopardy arises.     See, e.g., One
Lot Emerald Cut Stones v. United States (1972), 409 U.S.
232, 93 S.Ct. 489, 34 L Ed 2d 438.     Thus, defendant's com-
plaint that, in virtue of being adjudged an habitual traffic
offender he has been made subject to double jeopardy, is
without foundation.    Revocation of a driver's license under
the act relating to habitual traffic offenders on the basis
of previous convictions for violations is not intended as
punishment, as we have said, but for the protection of the
public. A prior suspension is not purged from a driver's
record merely by reinstatement of his license and attendant
privilege to drive, and so may be considered by the ~istrict
Court in a proceeding to declare a driver an habitual traf-
fic offender.   Perlmutter v. State (Colo. 1976), 554 P.2d
691, 693; Campbell v. State (Colo. 1971), 491 ~ . 2 d
                                                    1385,
1390; and In re France, 147 Mont. at 288-89, 411 P.2d at
734-35.      Operating a vehicle without a license is an offense
"indicative of a callous disregard of the law by an irre-
sponsible driver", State v. Bowles (1973), 113 N.H. 571, 311
A.2d 300, 302, and is properly considered in establishing
that a defendant has accumulated the requisite number of
conviction points within the statutory period.
         Given the avowed purpose of our statutes, defendant
cannot be heard to complain that his constitutional rights
have been violated.
         Issue 4.   In his last effort to find fault with the
proceeding adjudging him to be an habitual traffic offender,
defendant alleges that the complaint filed by the county
attorney was invalid on its face.       Orcutt claims that he
should not have been assessed four points for violating sec-
tion 31-177 (1)(g), R.C.M.    1947, regarding failure to report
an accident in violation of the law.       He readily acknowl-
edges that he was guilty of violating section 32-1207,
R.C.M.    1947, requiring "[tlhe driver of a vehicle involved
in an accident resulting in injury to or death of any person
or property damage to an apparent extent of one hundred
dollars ($100.00) or more" to "immediately by the quickest
means of communication give notice of such accident" to the
proper authorities. Section 31-177 (1)( g ) , R.C.M.    1947,
states that four points are to be assessed against a "driver
involved in an accident resulting in property damage of $250
to stop at the scene of the accident and give          the required
information - - otherwise - -to report - accident -
            or to         fail         an         in
violation - - -
          of the law      . . ."   (Emphasis added.)   Even though
he himself refers to the language underlined above, defen-
dant argues that property damage resulting from an accident
 must e q u a l o r exceed $250 b e f o r e t h i s s t a t u t e may be a p p l i e d

 i n c a l c u l a t i n g p o i n t s toward d e t e r m i n a t i o n of t h e s t a t u s of

 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 a t it d o e s n o t a p p e a r on t h e

 r e c o r d t h a t O r c u t t ' s v i o l a t i o n of s e c t i o n 32-1207,         R.C.M.

 1947, was a s s o c i a t e d w i t h a n a c c i d e n t i n which t h e r e was t h e

 r e q u i s i t e $250 w o r t h of damage; t h a t , t h e r e f o r e , t h e f o u r p o i n t s

 were i m p r o p e r l y a s s e s s e d a g a i n s t O r c u t t ; and, t h u s , t h a t

 t h o s e f o u r p o i n t s s h o u l d be d e d u c t e d from t h e t h i r t y - t h r e e

 p o i n t t o t a l , l e a v i n g O r c u t t w i t h twenty-nine p o i n t s , t o o few

 upon which t o commence p r o c e e d i n g s t o d e c l a r e him an h a b i t u a l

 t r a f f i c offender.         The argument i s s p e c i o u s .

          Orcutt i s arguing, i n e f f e c t , t h a t a d r i v e r involved i n

 a motor v e h i c l e a c c i d e n t i n which t h e p r o p e r t y damage i s

 d e t e r m i n e d t o be w i t h i n t h e $100 t o $249 r a n g e , who v i o l a t e s

 s e c t i o n 32-1207,       R.C.M.      1947, i s exempt from t h e o p e r a t i o n

 of t h e h a b i t u a l t r a f f i c o f f e n d e r s a c t , s e c t i o n 3 1 - 1 7 7 ( 1 ) ( g ) ,

 R.C.M.      1947.       Such a n argument v i o l a t e s t h e l e g i s l a t i v e

 i n t e n t e x p r e s s e d i n s e c t i o n 31-175,       R.C.M.      1947, d i s c u s s e d

 above. V i o l a t i o n of s e c t i o n 32-1207,              R.C.M.      1947, i s w i t h i n

 t h e a m b i t of t h e l a n g u a g e r e g a r d i n g f a i l u r e t o r e p o r t a n

 a c c i d e n t i n v i o l a t i o n of t h e law found i n s e c t i o n 31-177(1) ( 9 ) .

          For t h e above r e a s o n s , I would a f f i r m t h e judgment of

 t h e D i s t r i c t Court.




Mr.   Chief J u s t i c e Frank                       1 concurring:
                                                       1

            I concur i n t h e above d i s s e n t .



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