                                           No. 98-552

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2000 MT 335N


JAN RAY SWANSON,

              Petitioner and Appellant,

         V.


STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         District Court of the Seventeenth Judicial District,
                     In and for the County of Blaine,
                     The Honorable John Warner, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Gary R. Thomas, Thomas Law Office, P.C., Red Lodge, Montana

              For Respondent:

                     Hon. Joseph P. Mazurek, Attorney General; Brenda Nordlund,
                     Assistant Attorney General; Helena, Montana

                     Mark Harshman, Blaine County Attorney; Yvonne Laird, Deputy
                     County Attorney, Chinook, Montana


                                                              Submitted on Briefs: May 25,200O

                                                                    Decided: December 14,200O
Filed:
Justice Jim Regnier delivered the opinion of the Court.

ill    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited asprecedentbut shall be filed as

a public document with the Clerk of the SupremeCourt and shall be reported by case title,

Supreme Court causenumber, and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable casesissued by this Court.

lI2    Appellant, Jan Ray Swanson,a driver licensedin the state ofwyoming, appealsfrom

a district court order denying his petition to reinstate his Montana driving privileges.

ll3    Swanson arguesthat his due processrights were violated when his privilege to drive

in Montana was suspendedandhis Wyoming driver’s license was seizedbecausehe refused

to submit to a breath test after his arrest for Driving Under the Influence of Alcohol.

Swanson doesnot challengethe basis for the initial investigation or arrest, nor is the fact of

arrest or testing refusal at issue. We affirm the District Court’s ruling, and find no due

process violation.

ll4    Swanson raises the following issues:

75     1.     Did the District Court err in finding the information given to Swansonby a law

enforcement official relating to the potential penalties for refusal to take a breath test was

adequateto protect his due processrights?

l/6    2.     Did the District Court err in finding the seizureand subsequentmailing to the

home state of a nonresident’sdriver’s licensewas lawful?
                                      BACKGROUND

17     On January3 1, 1998,at approximately 2:30 a.m., Montana Highway Patrolman Steve

 Baiamonte approached a pickup truck stoppedjust off U.S. Highway 2, on a turnout in

Blame County. The lights were on and the enginewas running. On approachingthe vehicle,

Officer Baiamonte found Petitioner, Jan Ray Swanson asleep in the driver’s seat of his

pickup. Officer Baiamonte openedthe door to shut off the engine, and smelled the odor of

alcohol. After shutting off the engine, Officer Baiamonte awakened Swanson, who stated

he had pulled over to sleep. Swansonappeareddisoriented, and Officer Baiamonte observed

an open six pack of beer in the pickup. Officer Baiamonte then told Swanson to step out of

the vehicle and informed him that he was under arrest for driving under the influence of

alcohol (DUI).

ll8    Officer Baiamonte asked Swansonfor his driver’s license, registration, and proof of

insurance. He did not receive Swanson’sdriver’s license at that time. Officer Baiamonte

arrested Swanson and transported him to the Blaine County Sheriffs Office. Swanson was

subsequentlyprocessedfor the DUI charge.

19     During processing, Officer Baiamonte read the Montana Department of Justice

Implied Consent Advisory to Swanson. Among other things, the advisory form states that

refusal to submit to a breath or blood test will result in the seizure and suspensionof one’s

driver’s license for six months. It further provides that refusal to submit to similar testing

within the past five years, followed by anotherrefusal, will result in seizureofthe licenseand



                                              3
 revocation for one year. Officer Baiamonte then requested a breath sample, and Swanson

 refused. Baiamonte seized Swanson’sdriver’s license. Baiamonte provided Swanson with

 a “Notice of Suspensionor Revocation” stating, among other things, that a nonresident’s

driving privileges will be suspendedor revoked in the same manner as a resident’s,and that

the seized license is sent to the out-of-state driver’s home state with a copy of the report of

refusal. Officer Baiamonte subsequentlysent Swanson’sWyoming driver’s license to the

Montana Department of Justice with a copy of the refusal.

710    Swansonfiled a petition in the Seventeenth
                                                Judicial District Court, Blaine County, for

return of his Wyoming driver’s license and Montana driving privileges. A hearing was held

on July 28, 1998. The District   Court   issuedits Findings of Facts, Conclusions of Law, and

Order on August 28, 1998, denying Swanson’spetition for reinstatement of his Montana

driving privileges.

Ill    The District Court concluded that Montana had the authority to suspend Swanson’s

nonresident driving privileges within Montana, and the authority to seize Swanson’s

Wyoming driver’s license. Swansonappeals.

                                          ISSUE ONE

712    Did the District Court err in finding the information given to Swanson by a law

enforcement official relating to the potential penalties for refusal to take a breath test was

adequateto protect his due processrights?




                                               4
ll13    Swanson claims that the implied consent advisory is erroneous and misleading

 becauseit fails to distinguish between the suspensionof a Montana-issued driver’s license

and the suspensionof a nonresident’sdriving privileges in Montana, thus violating his right

to due process. Specifically, Swansonassertsthat he possessed valid Wyoming driver’s
                                                             a

license at the time of his arrest and, therefore, the information provided to him on the

advisory form, that ifhe retised the test, his driver’s licensewould be “seized and suspended

for six months” and if this was his secondref&al within five years, his driver’s license “will

be seizedand revoked for one year” was erroneous. In fact, Wyoming’s suspensionpenalties

are different than Montana’s, and thus he argues that he was misled by the information

provided. He also points out that although Montana may suspendor revoke his privilege to

drive in Montana, it has no authority to suspendor revoke his Wyoming driver’s license and

that only the State of Wyoming can do so. Therefore, he claims, any references in the

advisory form to Montana’sability to suspendor revoke his Wyoming driver’s licenseis false

and misleading. Swanson urges that nonresidentsshould simply be told that their &ivifzg

privileges ill Morztn~zn
                       will be suspendedor revoked if they refuse the test.

714    The State arguesthat the advisementgiven to Swanson,though not specific as to the

effects of refusal on out-of-state drivers, was not misleading and sufficiently informed

Swanson of the actions taken if he refused the breath test.

;?I5   We review a district court’s denial of a petition for reinstatement of a driver’s license

to determine whether the court’s findings of fact are clearly erroneousand its conclusions of



                                              5
law are correct. Ellenbwg v. Montann Dep’t ofJustice (199G),280 Mont. 268,270,929 P.2d

861,863; Bcrz~er State (1996), 275 Mont. 119, 122,910 P.2d 886,888. Whether a person’s
               v.

due processrights have beenviolated is a question of law. State v. Strand (1997): 286 Mont.

122, 124, 951 P.2d 552, 553.

116    Pursuant to Montana’s statutory licensing procedures, it is illegal to be in actual or

physical control of a vehicle on the highways of Montana while under the influence of

alcohol. Under Montana’s “Implied Consent” statute, any person driving on a public

highway in Montana is deemed to have consented to submit to a blood or breath test

administered at the direction of a peace officer. Sections 61-8-401 and -402, MCA. If a

driver refuses to submit to a breath or blood test at the request of a peace officer, the State

has the authority to suspend or revoke a Montana driver’s license or Montana driving

privileges. Sections 61-5-203,61-8-401 and -402, MCA.

117    The “implied Consent” statute does not specifically require an officer to provide

information to an arrestedmotorist asto the ramifications of refusal to take the requestedtest.

Sections 6 l-8-402, -404, and -405, MCA. In fact, a driver is not entitled to be informed that

he or shemay refuse the test. State v. Purrlie (1984), 209 Mont. 352,356,680 P.2d 576,579,

ovemrled on othergrotds     by Hulse v. State,Dep’t ofJustice, Motor VehicleDiv., 1998 MT

108, 289 Mont. 1, 961 P.2d 75. Yet, we have previously held that improperly informing a

driver of the consequencesof refusing to take the test may invalidate the suspensionof a
driver’s license. IPIye Matter of Oman (1986), 224 Mont. 332,335,73 1 P.2d 893, 895; see

also Walker v. State (1987), 229 Mont. 331, 335, 746 P.2d 624, 626.

718    This Court hasnot yet addressed
                                     exactly what information must be given to a motorist

before being asked to submit to a breath test. We decline to make such a determination

today. But, in the caseat hand, the advisory form was not erroneousnor did it affirmatively

mislead Swanson. The purposeof the advisory is to inform an apparently intoxicated driver

of the potentially serious consequences refusal to submit to a breath/blood test, and to
                                       of

inform the driver of his due processprotections such as independenttesting and availability

of posttesting hearings. An implied consentadvisory cannot inform every driver what the

“correct choice” may be in a certain situation. It merely infomrs the driver, in as clear a

manner as possible, of the potential dangersof each choice.

119    Officer Baiamonte informed Swanson,among other things, that if he refused the test,

his driver’s licensewould be seizedand suspended six months, and if this was his second
                                                for

refusal within five years, his driver’s license would be seizedand revoked for one year. In

addition, Officer Baiamonte, as required under law, gave Swanson written notice of the

suspensionor revocation and methodsto appealthe action. Section61-B-402(5), MCA. This

postadvisory notice, which was given to Swanson after he was arrested and his driver’s

license was seized, specifies that a nonresident’sdriving privileges will be suspendedor

revoked in the samemanner as thoseofresident drivers, and that his licensewould be mailed




                                            7
to his home state with a copy of the report of refusal. The notice also provided information

on the availability of a hearing in the district court.

720    The precise question raised in this appeal is whether Swanson’sdue process rights

were violated becausehe was informed that his driver’s license, not his nonresident driving

privileges, would be affected if he refused to take the test. The District Court held that

Swanson was provided sufficiently accurateinformation as to the ramifications of a refusal

to submit to testing. We agree.

72 1   Swanson was told that his “driver’s license” would be seized and suspendedfor six

months if he refused the test. Section 61-l-136(3), MCA, provides that “driver’s license”

is broadly defined to include “any nonresident’sdriving privilege.” When $ 61-8-402(4),

MCA, directs the Department to “suspendthe license” upon receipt of a report of a testing

refusal, the phrase “suspend the license” necessarily includes the suspension of “any

nonresident’sdriving privilege.” Thusthe notice alerted Swansonofhow refusal affected his

driving privileges in Montana. When Swansonrefused the test and his license was seized,

he was given notice of the suspensionor revocation and the right to appeal the action

pursuant to 5 6 l-8-402(5), MCA. This notice statedthat “[a] nonresident’sdriving privileges

will be suspendedor revoked in the samemanner [as a resident’sdriving privileges], plus the

seized license is sent to the home state with a copy of this report.” As the District Court

noted, overstating the consequences could occur in Montana for failure to submit to the
                                  that

breath test was unlikely to coerceSwansoninto refusing to submit to the test. Swansondid


                                               8
not take the test. Therefore, this is not a situation where a motorist was induced into taking

the test after being provided inaccurate information by a peaceofficer.

722       The state also correctly points out that the Wyoming implied consent law has no

bearing on this caseas is ultimately concededby Swanson. Wyoming’s implied consent law

is only invoked when a “person          drives or is in actual physical control of a motor vehicle

upon a public street or highway itzthis state.” Wyo. Stat. Ann. 9 3 l-6-102(a)( 1). In addition,

Montana cannot, nor should it attempt to, be responsible for informing a driver of the

potential adverse actions that another state may commence upon discovery of a refusal to

submit to testing. As such, we do not addressthe effects of our actions upon Swanson’s

rights under Wyoming law. Such rights must be determined by our sister courts in other

states.

                                           ISSUE TWO

123       Did the District Court err in finding the seizure and subsequentmailing to the home

state of a nonresident’sdriver’s license was lawful?

124       Swanson argues that it is unlawful for an agent of the State of Montana to seize his

Wyoming driver’s license for refusing to submit to a breath test. The State responds that

Montana statutesauthorize the Stateto suspendor revoke nonresidentdriving privileges and

seize nonresident drivers’ licenses.

725       Again, we review a district court’s denial of a petition for reinstatement of a driver’s

license to determine whether the court’s findings of fact are clearly erroneous and its


                                                 9
conclusions of law are correct. El/e/zburg, 280 Mont. at 270, 929 P.2d at 863; Bnue,-. 275

Mont. at 122, 910 P.2d at 888.

126    The State’s interest in depriving an intoxicated driver of permission to operate a

vehicle is particularly strong. By statute, any person who operatesor is in actual physical

control of a vehicle on Montana roads is consideredto have given consentto blood or breath

testing to detennine any alcohol or drugs in the person’sbody. Section 61-8-402(l), MCA.

A person may refuse the test, but doing so results in a seizureof the person’sdriver’s license

by a peaceofficer who sendsit to the Montana Department of Justice. Section 61-g-402(4),

MCA. Upon receipt of a resident’sdriver’s license,the Department suspendsor revokes the

driver’s license for a statutorily mandatedperiod of time. Section 61-g-402(4), MCA. For

nonresidents,Montana sendsthe nonresident’sdriver’s licenseto the issuing state, along with

a report of the nonresident’srefusal to take a breath test. Section 61-g-402(7), MCA.

127    We have consistently recognizedthe power of the State to regulate the licensing of

drivers in the interests of public safety. SeeState v. Deitclzler (1982), 201 Mont. 70,72,65 1

P.2d 1020, 1022; see also Mdcey \I. Montqm (1979), 443 U.S. 1,99 S. Ct. 2612,61 L. Ed.

2d321; Disorl v. Love(1977),431 U.S. 105,97 S. Ct. 1723,52 L. Ed. 2d 172; Bellv. Bwson

(1971), 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90. We have also recognized that the

government possessesthe police power to enact reasonablelegislation, even though the

regulation may frequently be an infringement of individual rights. Dietchler, 201 Mont. at

72,65 I P.2d at 1021. The generalrule that all legislative enactmentsare presumedvalid and


                                             10
the burden of proving their invalidity is on the plaintiff is equally applicablein caseswhere

the legislation at issue is an exercise of police power. iZ/lcElwnOz Cozrnty of Flathead
                                                                   V.

(1991), 248 Mont. 231, 236, 811 P.2d 1267, 1271. Thus, the burden is on Swanson to

demonstrate the invalidity of the seizure requirement in the “Implied Consent” statute.

128    As we have previously held, once a driver’s license has beenissued, the licenseehas

an important interest in retaining it. Therefore, a license cannot be suspendedor revoked

without the procedural due process guaranteedby the Fourteenth Amendment. Seyferth v.

State, Dep’t ofJustice, Motor VehicleDiv. (1996), 277 Mont. 377,381, 922 P.2d 484,496-

97. Seealso State ex rel. Majerus V. Carter (1984), 2 14 Mont. 272,276, 693 P.2d 501, 503

(quoting Be//, 402 U.S. at 539 ,91 S. Ct. at 1589). What due process safeguards may be

necessaryin a civil caseare lessthan thoserequired in a criminal case. Majerus, 2 14 Mont.

at 276,693 P.2d at 504. Thus, we employ a traditional due processbalancing test to protect

against a potentially erroneous deprivation of a protectable property interest. This test

requires consideration of the nature and weight of the private interest affected by the official

action, the risk of an erroneousdeprivation asa consequence the summary procedure used
                                                           of

and the probable value, if any, of additional or substitute procedural safeguards, and the

governmental interest, including the function involved, as well as any fiscal and

administrative burdens that might result from a substitute procedure sought. SeeMickey,

443 U.S. at 11; seealso Matthews v. Eldridge (1976), 424 U.S. 319,335,96 S. Ct. 893,903,

47 L. Ed. 2d 18. For analysis of the due processbalancing test in Montana, seegenerally,
Bean v. Montma Board ofLabor Appeals (1998), 290 Mont. 496, 965 P.2d 256; Dot-wart

V. Cnln~c~y, 1998MT 191,290Mont. 196,966P.2d1121;1~zretheMc~tte,-ofM.F.(1982),

201 Mont. 277, 653 P.2d 1205.

129    Here, we seeno evidencethat the nature of the private interest involved (Swanson’s

interest in physical possessionof his license pending action from his home state) or its

weight compels a conclusion that the seizure proceduresunder the “Implied Consent” law

are unconstitutional. Certainly, there is a compelling governmental interest in removing

drunk drivers from the highways. Additionally, there is a low risk of an erroneous

deprivation of a license. Seizure of a driver’s license comes only after a peaceofficer, who

is a trained observer and investigator, has arresteda motorist for DUI, and the motorist has

refused to submit to testing.     Swanson’s property interests in his license are suitably

protected, particularly in view of the availability of a postseizure hearing, the granting of a

temporary driving permit, and the fact that the seizure is of limited duration. Thus,

Swanson’sinjury by tlke loss of his license was nominal, and the postdeprivation remedies

made available by the $tate are more than sufficient to protect his minima1property interests.

Swansonhas not met hi:sburden of showing a dueprocessviolation, and provides no credible

argument showing that the nature and weight of his interest in possessionof his license

outweighs the State’si,lterest in keeping drunk drivers off the road.




                                              12
1130   We affirm the District Court’s denial of Swanson’spetition for reinstatement of his

driver’s license.




We Concur:




              Justices




                                           13
Justice Terry N. Trieweiler concurring.

ll31   I concur with the majority’s conclusion that seizure ofthe Defendant’s driver’s license

and delivery to his home state was lawful. I also concur with the majority’s conclusion that

Swanson was not denied his right to due process by virtue ,of the State’sImplied Consent

Advisory Form. However, I disagree with the majority’s reasons for arriving at that

conclusion.

132    I specifically disagreewith the majority’s statement that “the advisory form was not

erroneous nor did it affirmatively mislead Swanson.” 1 18.

733    When Swanson was advised by a Montana law enforcement officer in the state of

Montana that the consequencefor refusal to submit to testing of his blood-alcohol level

would be suspensionof his Wyoming driver’s license for six months, he was misinformed.

The State ofMontana hasno authority to suspendSwanson’sWyoming driver’s license. The

only authority the StateofMontana haswith regard to nonresident drivers is found at $4 61-

8-402(7) and 61-S-203, MCA. The former provides not that an out-of-state driver’s license

will be suspendedupon refusal to submit to tests for blood-alcohol level, but that it will be

seized and sent to the licensing authority of the driver’s home state. The latter statute

provides that nonresident driver’s privileges to drive in Montana can be suspended. There

is no provision under Montana law for the suspensionof a Wyoming driver’s license.

134    The majority ignores the misinformation given to Swanson and other out-of-state

drivers based on a technical argument that Montana statutory law includes out-of-state



                                             14
driving privileges in Montana within the definition of “driver’s license.” However, in the

context of the Implied Consent Advisory Form, which was read to Swanson, it is clear that

it is his actual Wyoming driver’s licenseand not his out-of-state driving privilege which he

is being told he will lose. Furthermore, the issueis whether someonewho submits or refuses

to submit to a test forblood-alcohol level has beenmisled. It is disingenuousto suggestthat

the suspect is not misled becauseof a broad statutory definition of “driver’s license” about

which the out-of-state driver knows nothing.

735    I would conclude that the advice given to Swansonwas incorrect and misleading by

overstating the consequences his refusal. Had he consentedto testing on the basis of that
                           of

misinformation I would vote, as I did in State v. Si~~znzo~zs, MT 329, that his consent
                                                           2000

was invalidly obtained and that any evidence produced from that consent should be

suppressed.However, it doesnot logically follow that Swansonrefusedto submit to a blood-

alcohol test becausethe consequencesfor refusal were overstated. Therefore, unlike the

situation in State V.Simmons,I do not believe that Swansonacted to his detriment basedon

misinformation or coercion. For that reason,neither do I believe he has demonstrated that

his right to due processwas violated.

736    Therefore, although I do not agree with all that is said in the majority opinion, I

specially concur with its decision to affirm the judgment of the District Court.




                                                         J&ice


                                             15
Justice William E. Hunt, Sr., joins in the foregoing concurring opinion.




                                                       Justice




                                            16
