97-189




                                                                             No. 97-189

                                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                             1998 MT 94



                                                                           DALE A. SMITH,

                                                                 Petitioner and Appellant,

                                                                                      v.

                                                               STATE OF MONTANA, DRIVER'S
                                                                   IMPROVEMENT BUREAU,

                                                                  Respondent and Respondent.



                                       APPEAL FROM:   District Court of the Eighteenth Judicial,
                                                  In and for the County of Gallatin,
                                            Honorable Michael A. Salvagni, Judge Presiding.

                                                                         COUNSEL OF RECORD:

                                                                               For Appellant:

                                                            Matthew P. Robinson, Bozeman, Montana

                                                                             For Respondents:

                                          Honorable Joseph P. Mazurek, Attorney General; Micheal
                                                              Wellenstein,
                                               Assistant Attorney General, Helena, Montana

                                                   Susan Wordal, City Attorney, Bozeman, Montana




                                                          Submitted on Briefs: February 18, 1998

                                                                         Decided: April 30, 1998

                                                                             Filed:




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                                                       __________________________________________
                                                                      Clerk

                  Chief Justice J. A. Turnage delivered the Opinion of the Court.

      ¶1  Dale A. Smith was stopped on suspicion of driving under the influence
       of alcohol (DUI) on December 14, 1996. When he refused to submit to a
     preliminary alcohol screening test (PAST), his Montana driver's license was
       suspended pursuant to § 61-8-409, MCA (1995). The Eighteenth Judicial
     District Court, Gallatin County, upheld the suspension of Smith's license.
                                   Smith appeals.

¶2   The issue is whether a conflict exists among Montana's implied consent
statutes rendering them unconstitutionally vague. In his appellate brief, Smith
also argues that the District Court erred in concluding that he was properly
advised of the consequences of his refusal to take the PAST. Because Smith
did not argue this issue before the District Court, we will not review it on
appeal. See State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96-97.

¶3    Two City of Bozeman, Montana, police officers observed Smith's
vehicle being driven on a city street without headlights at 1:15 a.m. on
December 14, 1996. The officers made a traffic stop, advising Smith, the
driver, of the reason. They detected a strong odor of an alcoholic beverage on
Smith's breath. Smith admitted that he had been drinking, and he did not do
well on field sobriety maneuvers.

¶4        One of the officers read Smith a warning card which stated:
          Your physical test results indicate to me that your ability to
          operate a motor vehicle safely may have been impaired by the
          alcohol that you have consumed.

          Under Montana Law, I have the right to ask you to take a
          preliminary breath test to estimate your alcohol concentration
          level.

          You may refuse to take this test. However, if you do, your
          driver's license will be suspended for six months. If you have
          refused to take a similar test in the past 5 years, your driver's
          license will be revoked for one year.

          I will use the results of this test and the other physical tests to
          help me decide whether or not you should be arrested for
          driving (or being in actual physical control of a motor vehicle)
          while under the influence of alcohol (or drugs).

          Will you take a preliminary breath test?

Smith refused to submit to the PAST.

¶5        Smith was arrested and transported to the Gallatin County Detention

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Center, where he was read the Montana Implied Consent Advisory form and
agreed to take the breath test. The result showed a blood alcohol
concentration of .158 percent. Smith was then informed that his license was
suspended
as a result of his refusal to provide a sample for the PAST. He began to argue
that he had not been advised, whereupon one of the officers retrieved the
advisory card and showed it to him. Smith then acknowledged that the
information had been read to him and asked, "Why didn't you slap me and
make me listen to you?"

¶6   Smith petitioned the District Court for review of his license suspension
on grounds that the past statute, § 61-8-409, MCA (1995), and the implied
consent statute, § 61-8-403, MCA (1995), are vague because they are
irreconcilable when read together and therefore void. After a hearing, the
District Court ruled that § 61-8-409, MCA (1995), is clear and does not
conflict with § 61-8-403, MCA (1995). The court ordered Smith's driver's
license suspended for six months from the date of original seizure, excluding
the time in which the license was restored pending the appeal of the suspension.
Smith's driving privileges have been reinstated throughout these
proceedings.
                       Discussion

¶7   Does a conflict among Montana's implied consent statutes render them
unconstitutionally vague?

¶8   As Smith points out, Montana's "traditional" implied consent law is
invoked only after a motorist has been arrested for DUI. See § 61-8-402,
MCA (1995). The 1995 Montana Legislature enacted an additional implied
consent law providing for the use of pre-arrest PASTs for persons suspected
of driving under the influence. This law, codified at § 61-8-409, MCA (1995),
requires motorists, upon particularized suspicion, to submit to a portable
breath testing device which, if refused, mandates suspension or revocation of
the person's driver's license just as is provided for a post-arrest breath test
refusal.

¶9        Section 61-8-409, MCA (1995), provides:
          Preliminary alcohol screening test. (1) A person who operates
          or is in actual physical control of a vehicle upon ways of this
          state open to the public is considered to have given consent to
          a preliminary alcohol screening test of the person's breath, for
          the purpose of estimating the person's alcohol concentration,
          upon the request of a peace officer who has a particularized
          suspicion that the person was driving or in actual physical
          control of a vehicle upon ways of this state open to the public
          while under the influence of alcohol or in violation of 61-8-410.
               (2) The results of a screening test may be used for
          determining whether probable cause exists to believe a person
          has violated 61-8-401, 61-8-406, or 61-8-410.
               (3) The person's obligation to submit to a test under 61-8-402
          is not satisfied by the person submitting to a preliminary

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          alcohol screening test pursuant to this section.
               (4) The peace officer shall inform the person of the right
          to refuse the test and that the refusal to submit to the preliminary
          alcohol screening test will result in the suspension or revocation
          for up to 1 year of that person's driver's license.
               (5) If the person refuses to submit to a test under this
          section, a test will not be given. However, the refusal is sufficient
          cause to suspend or revoke the person's driver's license as
          provided in 61-8-402.
               (6) A hearing as provided for in 61-8-403 must be
          available. The issues in the hearing must be limited to determining
          whether a peace officer had a particularized suspicion that
          the person was driving or in actual physical control of a vehicle
          upon ways of this state open to the public while under the
          influence of alcohol or in violation of 61-8-410 and whether the
          person refused to submit to the test.
               (7) The provisions of 61-8-402 (2) through (7) that do
          not conflict with this section are applicable to refusals under this
          section. If a person refuses a test requested under 61-8-402 and
          this section for the same incident, the department may not
          consider each a separate refusal for purposes of suspension or
          revocation under 61-8-402.
               (8) A test may not be conducted or requested under this
          section unless both the peace officer and the instrument used to
          conduct the preliminary alcohol screening test have been
          certified by the department pursuant to rules adopted under the
          authority of 61-8-405(6).


¶10 Smith's unconstitutionality argument relates to the hearing requirements
under the statute. Section 61-8-409(6), MCA (1995), states that "[a] hearing
as provided for in 61-8-403 must be available." Smith points out that a hearing
under § 61-8-403, MCA (1995), may include review of whether the person
was placed under arrest. But § 61-8-409(6), MCA (1995), limits the issues at
the hearing to whether the peace officer had a particularized suspicion to stop
the person and whether the person refused to submit to the test.

¶11 We begin with a presumption that statutes are constitutional. Monroe
v. State (1994), 265 Mont. 1, 3, 873 P.2d 230, 231. Statutes which impose
penalties, however, either criminal or civil, must be clear and explicit, and
where such statutes are so vague and uncertain in their terms as to convey no
meaning, the courts must declare the penal provisions void. Missoula High
School, Etc. v. Superintendent (1981), 196 Mont. 106, 112, 637 P.2d 1188,
1192. A statute may be unconstitutionally vague in two ways: on its face or
as applied in a particular situation. State v. Martel (1995), 273 Mont. 143,
149, 902 P.2d 14, 18. Smith claims that § 61-8-409, MCA (1995), is vague on
its face and as applied to him. Both claims are based on the perceived
inconsistencies mentioned above as to the breadth of hearings on license
suspension.



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¶12 A statute is void if it fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden. State v. Brogan (1995), 272
Mont. 156, 168, 900 P.2d 284, 291. If the challenged statute is reasonably
clear in its application to the conduct of the person bringing the challenge, the
statute cannot be stricken on its face for vagueness. State v. Nye (1997), 283
Mont. 505, 514, 943 P.2d 96, 102. Although Smith has cited a number of
cases involving vagueness challenges to statutes, he has cited no cases on point
as to the type of statutory challenge he makes in this case.

¶13 Section 61-8-409, MCA (1995), clearly and distinctly provides that a
person who operates a vehicle upon public ways of the state of Montana is
deemed to have given consent to a PAST and that refusal to submit to the
past will result in the suspension or revocation of that person's driver's
license for up to one year. We see nothing unclear in that portion of the
statute. The instructions given for the PAST clearly stated, "You may refuse
to take this test. However, if you do, your driver's license will be suspended
for six months."

¶14 Section 61-8-409(3), MCA (1995), clearly differentiates between a
PAST and a test under § 61-8-402, MCA (1995): "The person's obligation to
submit to a test under § 61-8-402 is not satisfied by the person submitting to a
preliminary alcohol screening test pursuant to this section."   The PAST under
§ 61-8-409, MCA (1995), is for the limited purpose of estimating a driver's
alcohol concentration and is not substantive evidence of the amount of alcohol
present in the driver's body. State v. Strizich (Mont. 1997), 952 P.2d 1365,
____, 54 St.Rep. 1241, 1246. That purpose is different from the purpose of
the blood or breath tests under § 61-8-402, MCA (1995): "for the purpose of
determining any measured amount or detected presence of alcohol or drugs in
the person's body." The former assists the peace officer in determining
whether there is probable cause to support an arrest, while the latter can be
used as substantive evidence in a criminal prosecution to support a conviction
of DUI. The issues at hearings on suspensions and revocations under the two
statutes are necessarily different; appropriately, the arrest requirement is not
present in the instance of a past, because that test is administered, based
upon particularized suspicion, prior to arrest to help the officer determine if
an arrest is warranted.

¶15 Inasmuch as the issues which may be considered at a hearing under
subsection (4) of § 61-8-403, MCA (1995), differ from the provisions of § 61-8-409
(6),
MCA (1995), we rely on the rule of statutory construction that the
specific prevails over the general. A particular statutory intent controls over
a general one which is inconsistent with it. Section 1-2-102, MCA. Further,
when two statutes deal with a subject, one in general and comprehensive terms
and the other in minute and more definite terms, the more definite statute will
prevail to the extent of any opposition between them. In re Marriage of Jones
(1987), 226 Mont. 14, 16, 736 P.2d 94, 95.

¶16 Section 61-8-403, MCA (1995), may fairly be described as a general
statute concerning appeals of suspensions and revocations of driver's licenses

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under the implied consent laws. While the issues to be considered at a license
suspension or revocation hearing are laid out in subsection (4), the statute also
deals with other matters relating to such appeals. Subsection (1) sets forth
when and where a petition to challenge a license suspension or revocation must
be filed. Subsection (2) provides for notice to the state and representation
of the state at the hearing. Subsection (3) allows a stay of the suspension
or revocation pending the hearing. Subsection (5) states that the right of
appeal does not apply when the driver's license has been seized, suspended, or
revoked under tribal law.

¶17 Section 61-8-409, MCA (1995), is the specific statute on PASTs,
including hearings on license suspension or revocation based upon refusal to
submit to a PAST.   Section 61-8-409(6), MCA (1995), specifies the issues
which may be discussed at a hearing on suspension or revocation of a driver's
license when the suspension or revocation is based upon refusal to submit to
a PAST prior to arrest.

¶18 We conclude that Smith has not established a conflict among Montana's
implied consent statutes which renders them unconstitutionally vague either
on their face or as applied to him. We therefore affirm the judgment of the
District Court upholding the suspension of Smith's Montana driver's license.

                                                             /S/       J. A.          TURNAGE


We concur:

/S/       JAMES C. NELSON
/S/       WILLIAM E. HUNT, SR.
/S/       W. WILLIAM LEAPHART
/S/       TERRY N. TRIEWEILER




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