                                   No. 85-615
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1986




STATE OF MONTANA,
                 Plaintiff and Appellant,
         -vs-
MICHAEL KEVIN GEE,
                 Defendant and Respondent.




APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                 Hon. Mike Greely, Attorney General, Helena, Montana
                 A. Michael Salvagni, County Attorney, Bozeman, Montana
                 Marty Lambert, Deputy County Attorney, Bozeman

         For Respondent:
                 Bolinger   &   Foster; K. Robert Foster, Bozeman, Montana




                                       Submitted on Briefs: June 24, 1986
                                         Decided:   August 11, 1986


Filed:




                                       Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


       The State appeals from the order of the Gallatin County
District Court granting Gee's motion to dismiss for lack of
jurisdiction.
       We affirm.
       The issue on appeal is whether the District Court erred
in granting Gee's motion to dismiss the charge against him of
driving under the influence of alcohol, third offense, for
lack of       jurisdiction because he had     only one prior DUI
conviction as an adult.
       On March 7, 1981, Gee was charged with DUI in Gallatin
County Justice Court.      He pled guilty.    Gee was 16 years old
at the time.        On May 9, 1982, Gee was charged with DUI in
Bozeman City Court.      He again pled guilty.    He was 18 years
old at that time.      On December 19, 1984, Gee was arrested for
DUI.     An    information was   filed with   the District Court
charging Gee with driving under the influence of alcohol,
third offense.
       The District Court granted Gee's motion to dismiss the
information.      The court based its order upon the language of
§   61-12-601, MCA.    That statute states:
       (1) The district courts and the justices' courts
       of the state and the municipal and city courts of
       cities and towns shall have concurrent original
       jurisdiction in all proceedings concerning the
       unlawful operation of motor vehicles by children
       under the age of 18 years.
       (2) Whenever, after a hearing before the court, it
       shall be found that a child under the age of 18
       years has unlawfully operated a motor vehicle, the
       court may:
       (a) impose a fine, not exceeding $50, provided
       such child shall not be imprisoned for failure to
       pay such fine;
       (b) revoke the driver's license of such child, or
       suspend the same for such time as may be fixed by
       the court; and
       (c) order any motor vehicle owned or operated by
       such child to be impounded by the probation officer
       for such time, not exceeding 60 days, as shall be
       fixed by the court.    However, if the court shall
       find that the operation of such motor vehicle was
       without the consent of the owner, then such vehicle
       shall not be impounded.
       In its order, the District Court stated:
       Under Montana law a minor who commits a vehicular
       offense, including the offense of DUI, is found to
       be guilty of unlawful operation of motor vehicles
       under 5 61-12-601, MCA. The minor is not found to
       be guilty of the principle offense charged.
       Since       Gee's   first   offense    was   a    violation   of   S

61-12-601, MCA, the court found that Gee had only one prior
conviction as an adult under            $   61-8-401, MCA.      Therefore,
Gee's current charge is DUI, second offense.                  The District
Court lacks jurisdiction to hear a charge of DUI, second
offense.      State v. Heine (1976), 169 Mont. 25, 544 P.2d 1212.
So the court granted Gee's motion to dismiss.
       The State makes two main arguments on appeal.                 First,
that    $    61-12-601, MCA, is unconstitutionally vague as a
criminal statute because it does not establish a crime, but
merely provides the forum where other traffic crimes found in
the Montana Code Annotated shall be prosecuted if a juvenile
driver is involved, and the penalties that the court may
impose.       We disagree.    The statute is not unconstitutionally
vague for failure to adequately describe prohibited conduct.
To determine what conduct is prohibited one must simply look
to the principal traffic offense charged.               That does not make
the statute unconstitutionally vague.                   The Montana Youth
Court       Act,   $   41-5-101,   et   seq.,   MCA,     is   similar.    A
delinquent youth is defined at 5 41-5-103 (12), MCA, as a
youth :
     (a) who has committed an offense which, if
     committed by an adult, would constitute a criminal
     offense.
If a juvenile is charged with burglary, he is not found
guilty    of   the    offense      charged,   but    is   found     to   be   a
delinquent youth.          In order to determine whether a juvenile
is a delinquent youth or a youth in need of supervision, it
is necessary to refer to an underlying criminal statute.
That does not make the Youth Court Act unconstitutional.
     Similarly,      $5   61-12-601, MCA, establishes the offense of
unlawful operation of a motor vehicle by a minor.                         That
statute establishes the jurisdiction of the courts and the
penalties which can be imposed.           The statute is not deficient
merely because one must look to other statutes to determine
whether the minor has unlawfully operated a motor vehicle.
Section 61-12-601, MCA, is not unconstitutional.
     The State's second argument is that the District Court's
dismissal violates the policy of the Montana habitual traffic
offender    laws,         $55 61-11-201, et     seq.,      MCA.      Section
61-11-201, MCA, states:
    This part is predicated upon the belief and
    philosophy that innocent drivers and other innocent
    passengers and pedestrians have a constitutional
    right to live, free from fear of death or injury
    from habitual traffic offenders.    Further, it is
    the purpose of this part to reduce the number of
    motor vehicle accidents in this state and to
    provide greater safety to the motoring public and
    others by denying to the habitual traffic offenders
    the privilege of operating a motor vehicle upon the
    public streets and highways of this state.
    The State argues that this statute makes no distinction
between    juvenile       and    adult   drivers, and      making    such     a
distinction would          frustrate the purpose          of the habitual
traffic offender laws.            The habitual traffic offender laws
provide for the accumulation of points upon conviction for
traffic    offenses.         A   conviction    for   driving      under   the
influence of alcohol is 10 points.             Section 61-11-203 (2)(d),
MCA.     A conviction for unlawful operation of a motor vehicle
by a minor results in the accumulation of only 2 points.
Section 61-11-203(2) (L), MCA.          An accumulation of 30 points
results in revocation of the offender's license for 3 years.
Section 61-11-211, MCA.         Thus, concludes the State, allowing
a   juvenile to be      found     guilty      under    S    61-12-601, MCA,
resulting in the accumulation of only 2 points violates the
purpose of the habitual traffic offender law.
       We do not agree.    The purpose expressed in S 61-11-201,
MCA, can be accomplished under the penalty provisions of S
61-12-601 (2)(b), MCA.          Under that statute, the court may
"revoke the driver's license of such child, or suspend the
same for such time as may be fixed by the court."                       Under S
61-12-601, MCA, the minor's driver's license can be revoked
or suspended prior to the accumulation of 30 points.
       Further,   5   61-12-601,       MCA,    does        not   contain    the
mandatory    jail provisions applicable to                 adults convicted
under S     61-8-401, MCA.        The absence of incarceration is
consistent with the philosophy expressed throughout Montana
law to attempt to rehabilitate youthful offenders, not punish
them.     Under 5 61-12-601(2)(a), MCA, the court has the power
to "impose a fine, not to exceed $50, provided such child
shall not     be imprisoned      for   failure to pay            such    fine."
(Emphasis added.)         One    purpose      of   the Youth Court Act
declared in S 41-5-102(2), MCA, is:
        (2) to remove from youth committing violations of
        the law the element of retribution and to
        substitute therefor a program of supervision, care,
        rehabilitation,   and,    in   appropriate   cases,
        restitution as ordered by the youth court.
The legislature is attempting to treat youthful offenders
differently than adult offenders.                  A   conviction under S
61-8-401, MCA, as urged by the State, would result in jail
time for the youth.        This conflicts with the emphasis placed
by   the     legislature     on   rehabilitation   as   opposed   to
retribution when youthful offenders are involved.
     We agree with the interpretation of the District Court
that a minor who commits a vehicular offense is guilty of
unlawful operation of a motor vehicle under S 61-12-601, MCA.
That stautute is not unconstitutionally vague because one
must refer to other vehicular offense statutes to determine
whether the minor engaged in unlawful operation of a motor
vehicle.      Further, finding that a youth has violated          §

61-12-601, MCA, upholds the policy of the habitual traffic
offender law, and is consistent with the philosophy found
throughout Montana    law of emphasizing rehabilitation over
retribution.
     The order of the District Court is affirmed.




We Concur:



      Chief Justice
Mr. Justice L. C. Gulbrandson, dissenting:
        I respectfully dissent.

        Contrary to the declarations in the majority opinion,
the State does not argue that S 61-12-601, MCA, is unconsti-
tutional.    The State's position is that the section does not
establish a criminal offense, and it was only when the Dis-
trict Court ruled that it established a crime did the consti-
tutional infirmity of vagueness arise.
        The record is clear that the defendant entered a plea
of guilty to DUI (5 61-8-401, MCA) in Gallatin County Justice
Court on March 7, 1981, one month prior to his seventeenth
birthday, and that he pled guilty as an adult to DUI on May
9, 1982.    The present DUI offense occurred December 19, 1984,
which date is within the five-year period contemplated by
§   61-8-714 (3), MCA.
        The Justice Court, on March 7, 1981, had jurisdiction
to accept the plea of guilty and was only limited in the
punishment it could impose under        §   61-12-601, MCA.
        This Court, in State of Montana ex rel. Lloyd Scott
Maier v. The City Court of Billings (Mont. 1983), 662 P.2d
276, 40 St.Rep. 560, stated:
             The provisions of section 61-12-601,
             MCA, are therefore exclusive as to
             jurisdiction of traffic offenses involv-
             ing minors, and youth courts in this
             state are granted no jurisdiction of
             such traffic law violations.
Maier, 662 P.2d at 281.
        It is my opinion that the legislature, by excluding
traffic violations from the Youth Court Act                (5 61-12-601,
MCA) and by opening a youth's traffic records to public
inspection    (§   41-5-602, MCA)   has      indicated a      legislative
intent     that    juvenile   drivers   be     subject   to    the   same
responsibilities as adult drivers, although imprisonment is
not all-owed as punishment for juvenile traffic offenders.
      The majority, by ruling that DUI offenses (no matter
how many) committed by a juvenile may not be considered in
the application of S 61-8-714 (3), MCA, in the prosecution of
an adult charged with DUI, in my view, is undermining the
policy of the habitual traffic offender law which it claims
to be upholding.
      Once again, because of judicial decision, the legisla-
ture will be faced with the responsibility of declaring the
public policy of this State with regard to the prosecution of
DUI offenses under   $   61-8-714 (3), MCA, and the accumulation
of traffic conviction points under S 61-11-203(2) (d), MCA.
      I would reverse the order of the District Court.
     Mr. Justice Fred J. Weber dissents as follows:
     I    concur     in   the   foregoing     dissent    of    Justice
Gulbrandson.
     The code section relating to the revocation of driving
privileges for habitual traffic offenders is presently con-
tained in   §§   61-11-201 to -215.    This was enacted as Chapter
No. 362 in the 1974 Legislative Session.           As enacted, the
title stated that it was an act relating to habitual traffic
offenders providing for a system of conviction points leading
to revocation of driving privileges.            As appears from a
review of the Act, the essential element is that it affords a
means of taking away the license to drive of a person who has
demonstrated his apparent indifference for the safety and
welfare of others and his disrespect for the laws of Montana
and disregard of the orders of courts.        - 5 61-11-202, MCA,
                                              See
for the legislative intent.     I believe it is readily possible
to give effect to the Act by taking away a driver's license
without   contradicting    the other penalties provided          in   §

61-12-601    and    61-8-401,   MCA.      I   agree     with   Justice
Gulbrandson in noting that the Act does not suggest any
reason why the indifference of a driver to the safety and
welfare of others is any different for a minor offender than
for an adult.      In fact, a minor indicates a greater disregard
and disrespect for the laws of the state when he consumes
alcohol, which is illegal for a person his age, and therefore
more accurately fits within the group of persons whom the
Legislature intended to control.
    The defendant pleaded guilty to DUI ( S 61-8-401, MCA) in
justice court while 16 years of age.        Under S 61-11-203, MCA,
"conviction" includes a finding of guilt by duly constituted
judicial authority as a result of a plea of guilty.                   It
c l e a r l y appears t h a t t h e 1 6 year o l d ' s p l e a of g u i l t y consti-

tutes      such a     conviction.           I would       t h e r e f o r e conclude t h a t

t h e r e i s a b a s i s under t h e s e s t a t u t e s f o r t h e d e t e r m i n a t i o n

by t h e    c o u r t whether t h e d e f e n d a n t was a h a b i t u a l t r a f f i c

o f f e n d e r who   s h o u l d be   required      to    surrender h i s        driver's

license.       I would t h e r e f o r e r e v e r s e t h e Order o f t h e D i s t r i c t

Court.




Mr.    Chief J u s t i c e J. A. Turnage, d i s s e n t s a s f o l l o w s :

         I concur i n t h e f o r e g o i n g d i s s e n t of M r .    J u s t i c e L. C.

Gulbrandson and t h e d i s s e n t of M r .           J u s t i c e F r e d J . Weber.
