                                                                                            December 23 2008


                                          DA 08-0087

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2008 MT 439N



STATE OF MONTANA, CITY OF KALISPELL,

              Plaintiff and Appellee,

         v.

THOMAS MARTIN VanDYKE,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Eleventh Judicial District,
                      In and For the County of Flathead, Cause No. DC 07-322
                      Honorable Katherine R. Curtis, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender; Lisa S. Korchinski, Assistant
                      Appellate Defender; Helena, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General; Brenda G. Nordlund,
                      Assistant Attorney General; Helena, Montana

                      Kristi L. Curtis, Assistant Kalispell City Attorney; Kalispell, Montana



                                                    Submitted on Briefs: October 29, 2008

                                                                Decided: December 23, 2008


Filed:

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

¶1     Pursuant to Section 1, Paragraph 3(d), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court, and its case title, Supreme Court cause number, and disposition shall be included

in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     Thomas VanDyke (“VanDyke”) appeals from the order of the Eleventh Judicial

District Court, Flathead County, denying his motion to dismiss the charge of habitual

traffic offender operating a motor vehicle. We affirm the order of the District Court.

¶3     On March 31, 2006, a Kalispell police officer stopped VanDyke’s vehicle. A

license check indicated that VanDyke had been declared a habitual traffic offender and

his license revoked pursuant to § 61-11-211, MCA. VanDyke was charged with violation

of § 61-11-213, MCA, habitual traffic offender operating a motor vehicle. Just prior to

his trial in the Kalispell Municipal Court, VanDyke advised the city attorney that he

intended to argue he had not received notice that he was declared a habitual traffic

offender. In response to this information, the City made an oral motion in limine to

exclude evidence concerning whether VanDyke received such notice, arguing that

knowledge of one’s status as a habitual traffic offender is not an element of the offense

charged. The City also relied upon § 61-11-204(2), MCA, noting that the statute makes

service of the notice of declaration and accompanying license revocation “complete upon

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mailing.”    VanDyke argued that the lack of notice amounted to a violation of his

procedural due process rights under the Montana and United States Constitutions. The

Municipal Court granted the City’s motion, and VanDyke pled guilty to the offense,

reserving the right to appeal the Municipal Court’s ruling. The District Court denied

VanDyke’s resulting motion to dismiss, concluding that his due process rights had not

been violated. This appeal followed.

¶4     We review a district court’s denial of a motion to dismiss in a criminal case to

determine whether the court’s conclusions of law were correct. State v. Barron, 2008

MT 69, ¶ 10, 342 Mont. 100, ¶ 10, 179 P.3d 519, ¶ 10. Our review of constitutional

questions is plenary.       Barron, ¶ 10.       Statutes are accorded a presumption of

constitutionality, t h u s the burden of proof is upon the party challenging the

constitutionality of a statute. State v. Pyette, 2007 MT 119, ¶ 12, 337 Mont. 265, ¶ 12,

159 P.3d 232, ¶ 12.

¶5     Section 61-11-204, MCA, controls the manner in which a person declared a

habitual traffic offender is notified of their status and corresponding license revocation.

The statute provides that “service of the notice is complete upon mailing.” Section 61-

11-204, MCA. We analyze the adequacy of notice of a driver’s license revocation, and

thus the sufficiency of the statute’s notice provision, using the following three factors:

            first, the private interest that will be affected by the official action;
            second, the risk of erroneous deprivation of such interest through the
            procedures used, and the probable value, if any, of additional or
            substitute procedural safeguards; and finally, the Government’s
            interest, including the function involved and the fiscal and

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           administrative burdens that the additional or substitute procedural
           requirement would entail.

Pyette, ¶ 17.

¶6     On appeal, VanDyke argues that because operating a motor vehicle after being

declared a habitual traffic offender will result in incarceration, his liberty interest is at

stake; and therefore, § 61-11-204, MCA, is constitutionally infirm in that it does not

satisfy procedural due process requirements. VanDyke’s assertion of unconstitutionality

is premised on the theory that his liberty interest, not his property interest in his driver’s

license, was put at stake by virtue of the declaration of his status as a habitual traffic

offender. We have held that, once issued, a driver’s license becomes a property interest

that may not be suspended or revoked without the procedural due process guaranteed by

the Montana and United States Constitutions. Pyette, ¶ 13. VanDyke cites no authority

for the proposition that one’s property interest in their driver’s license is somehow

transformed into a liberty interest when that license is suspended and further traffic

violations will result in incarceration. We therefore analyze VanDyke’s claim in the

context of the property interest he has in his driver’s license.

¶7     We turn now to the second element of the Pyette test—whether the notice

provision of § 61-11-204, MCA, creates a risk of an erroneous deprivation of VanDyke’s

property interest in his driver’s license. Pyette, ¶ 17. Assessing the merits of VanDyke’s

argument on appeal requires us to determine whether the notice provided was

“reasonably calculated, under all the circumstances, to inform the affected party of the

impending action and to give an opportunity to present objections.”            Pyette, ¶ 13.
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VanDyke concedes that there would be little risk of an erroneous suspension of his

driver’s license as a result of the notice mandated under the statute. This concession

alone is dispositive of the second element of Pyette. Moreover, as the District Court

correctly noted, VanDyke had the opportunity to file a petition for judicial review of the

habitual traffic offender declaration under § 61-11-210(1), MCA, (an opportunity to

present objections), but did not do so.       Furthermore, we agree with the State that

VanDyke had constructive notice of his status as a habitual offender by virtue of his

knowledge of the multiple traffic violations responsible for his status as a habitual traffic

offender. We have long adhered to the maxim, applicable here, that “ignorance of the

law is no excuse.” State v. Tichenor, 2002 MT 311, ¶ 46, 313 Mont. 95, ¶ 46, 60 P.3d

454, ¶ 46. Finally, VanDyke fails to propose any additional procedures that would better

safeguard his property interest in his driver’s license so that we might analyze their

probable value.

¶8     The third factor of the Pyette test contemplates the urgency of the government’s

interest at stake. The government has a compelling interest in keeping those drivers who

are apparently unable to comply with traffic laws off of public highways. Pyette, ¶ 27.

This interest justifies immediate revocation of the offender’s driver’s license. Allowing

notice to the offender to become effective upon mailing most efficiently carries out that

objective. VanDyke’s arguments to the contrary are premised upon the theory that his

liberty interest are at stake. As stated above, this characterization is without merit,

therefore we decline to further address his arguments in that regard.

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¶9    We have decided to determine this case pursuant to Section 1, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the record before us that the District Court did

not err in its disposition of this matter.   We therefore affirm the District Court’s

determination that the notice provision of § 61-11-204, MCA, satisfies constitutional due

process standards.



                                               /S/ W. WILLIAM LEAPHART


We concur:


/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE




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