                                                No.    85-495

                  I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                      1986




I N THE MATTER OF THE APPEAL OF:

GERALD L E E HORTON FROM A
REVOCATION OF H I S D R I V E R ' S
LICENSE,
                Appellant,



STATE OF MONTANA,

                      Respondent.




APPEAL FROM:          D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                      I n and f o r t h e C o u n t y of Y e l l o w s t o n e ,
                      T h e H o n o r a b l e D i a n e G. B a r z , Judge p r e s i d i n g .


COUNSEL OF RECORD:

          For A p p e l l a n t :

                     M o r i n & C o l l i n s ; R o b e r t P.     M o r i n argued, B i l l i n g s ,
                     Montana.

          F o r Respondent:

                      Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
                      B a r b a r a C l a a s s e n argued, A s s t . A t t y . G e n e r a l , H e l e n a
                      H a r o l d F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
                      D a v i d W. H o e f e r , D e p u t y C o u n t y A t t o r n e y , B i l l i n g s




                                                      Submitted:        March 1 4 , 1986

                                                        Decided:        A p r i l 30, 1 9 8 6


         AF ki JQ 1986
Filed:




                                       a* L
                                         ,            Clerk
                                                                           *
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
     The Department of Justice, Motor Vehicle Division (divi-
sion) revoked for one year the d.river1slicense of Gerald Lee
Horton      (petitioner)    .   On    appeal, the Yellowstone County
District Court affirmed the one year revocation.              Petitioner
now appeals to this Court contending the suspension should
have been for six months.            We affirm.
     The issues are:
     I..     Does S 61-5-208 (2), MCA, require a one year license
revocation when an individual incurs a blood alcohol concen-
tration (RAC) violation within five years of a driving under
the influence (DUI) violation?
     2.      Is   §   61-5-208 (2), MCA, void for va-gueness?
     In August          1983, petitioner was convicted of DUI in
violation of 5 61-8-401, PICA.              In November 1984, petitioner
was convicted of a BAC violation under S                 61-8-406, MCA.
Under 5 61-5-208 (2), a second offense within five years of
the first offense requires the division to revoke a license
for a period of one year.             The division concluded that the
DUI conviction was the first offense and the BAC conviction
was a second offense, and therefore revoked petitioner ' s
license for one year.
                                        I
     Does     §   61-5-208 (2), MCA, require a one year revocation
when an individual incurs a BAC violation within five years
of a DUI violation?
     Section 61-8-401(1), lists four separate and distinct
ways in which a person may be found DUI:

           61-8-401. Persons under the influence of
           alcohol or drugs.    (1) It is unlawfiz
           and punishable as provided in 61-8-714
           for any person who is under the influence
           of:
      (a) alcohol to drive or be in actual
      physical control of a vehicle upon the
      ways of this state open to the public;
      (b) a narcotic drug to drive or be in
      actual physical control of a vehicle
      within this state;
      (c) any other drug to a degree which
      renders him incapable of safely driving a
      vehicle to drive or be in actual physical
      control of a vehicle within this state;
      or
       (d) alcohol and any drug to a degree
      that renders him incapable of safely
      driving a vehicle to drive or be in
      actual physical control of a vehicle
      within this state.
    Section 61-8-406, describes a BAC violation as follows:

      61-8-406.    O~eration of vehicle bv a
                                        ofb.
      person with afcohol concentration - -ld
      - provided in 61-8-722 for anycperson to
      or -
      as
         more.   It is unlawful and punishable
      drive or be in actual physical control of
      a vehicle upon the ways of this state
      open to the public while the alcohol
      concentration in his blood, breath, or
      urine is 0.10 or more.

    Section    61-5-208 (2)   refers   to    offenses   under   $S

61-8-401(1) and -406, stating in pertinent part:

       [Wlhen any person is convicted       ... for
      the offense of operating or being in
      actual physical control of a motor vehi-
      cle while under the influence of alcohol
      or a narcotic drug or knowingly or will-
      ingly under the influence of any other
      drug to a degree which renders him inca-
      pable of safely driving a motor vehicle,
      or a combination thereof, - - -  or for the
      offense of operation - - motor vehicle
                                of a
      bv a ~ e r s o n
      A    -   L   -
                      with alcohol concentration -
                                                 of
      0.10 or more, the division shall, upon
      - - -
      receivinq a report of such conviction       ..
       . suspend the-license or driving privi-
      lege of the person for a period of 6
      months.      Upon receiving a report of a
      conviction   . . .    for a second, third, or
      subsequent offense within 5 years of.the
      first offense, the division shall revoke
      the license or driving privilege of the
      person for a period of 1 year (emphasis
      added to underscore the 1983 amendment)      .
Prior to the 1983 amendment, the division was required to
revoke a license for one year upon receiving notice of con-
viction of a second offense of driving under the influence of
alcohol, or a narcotic drug, or any other drug, or alcohol
and any other drug.    While the offense of driving under the
influence of alcohol is not necessarily the same as driving
under the influence of a narcotic drug, or other drug, the
convictions were treated the same for penalty purposes.      In
1983 the statute was amended by adding BAC as a fifth ground
for suspension or revocation of a license.
     In State ex rel. Palmer v. Hart (1982), 201 Mont. 526,
655 P. 2d 965, we pointed out that in construing legislation,
the function of this Court is to state the substance of the
legislation, and where the language of the statute is plain,
unambiguous, and direct, the statute speaks for itself.
     Petitioner argues that one BAC plus one DUI is not equal
to a second offense.   He maintains that it is unreasonable to
construe DUI and BAC as synonymous because a DUI conviction
is a distinct criminal offense from a BAC conviction.      The
State points out that we are here concerned with the civil
penalty of license revocation and that for license revocation
purposes DUL and BAC are synonymous.
    We agree with the State's contention. It is true that
the criminal statutes defining DUI and BAC are different, and
properly so, because the offenses are not identical.      Here,
however, we are not concerned with the criminal aspect of
these statutes but only with the civil penalty of revocation
of a driver's license.    Section 61-5-208 (2) is plain, unam-
biguous and certain in providing that a BAC conviction fol-
lowing a DUI conviction, whether under the influence of
alcohol, narcotic drug, other drug, or combination of alcohol
and drugs, results in a license revocation for one year.    We
    do not find any contradiction in those provisions.       Operation
    of a motor vehicle with an alcohol concentration of 0.10 or
    more is clearly similar in nature to the offense of driving
    under the influence of alcohol.         As pointed out by the Dis-
    trict Court, the effectiveness of an enhanced sanction would
    be lost if petitioner's interpretation were accepted.          An
    offender could avoid the increased sanction merely by plead-
    ing guilty to an alternate offense. Clearly, the legislature
    did not intend that result.
         We hold that   §   61-5-208(2), MCA, properly requires a one
    year license revocation when an individual is convicted of a
    BAC violation within five years of a DUI conviction.
                                     I1
         Is S 61-5-208(2), MCA, void for vagueness?
         As previously discussed, the statute is not ambiguous
    and certainly is not vague.           It clearly lists the type of
    offenses which may be the basis for a license revocation.      We
    hold that the statute is not void for vagueness.
         We affirm.




 We Concur:



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       Chief Justice
