                                                 No,    84-496

                    I N THE SUPREME COURT O F THE S T A T E O F MONTANA




I N THE MATTER O F ERNEST THOMAS
VINBERG, P e t i t i o n e r .




A P P E A L FROM:      D i s t r i c t C o u r t of t h e T w e l f 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 H i l l ,
                       T h e E I o n o r a b l e C h a n E t t i e n , Judge p r e s i d i n g .



COUNSEL O F RECORD:


          For A p p e l l a n t :

                    M o r r i s o n , B a r r o n & Young;      R o b e r t C.   M e l c h e r argued,
                    Havre, Montana


          For R e s p o n d e n t :

                    Mike Greely, Attorney General, Helena, Montana
                    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
                    R o n a l d W. S m i t h , C o u n t y A t t o r n e y , H a v r e , M o n t a n a




                                                 Submitted:           A p r i l 15, 1 9 8 5

                                                    Decided:          M a y 2,    1985




                     S
                     &                  - % s &J
                                  /j7/ h7/ & e ,
                                        ,
                                                Clerk
Mr. Justice John C. Sheehy d.elivered the Opinion of the
Court.


      Ernest Vinberg appeals from an order of the Twelfth
Judicial District, Hill County, upholding the suspension of
his license by the Motor Vehicle Division.                  We affirm the
District Court.
      On August 25, 1-984 Vinberg was arrested for driving
und.er the influence of alcohol.       The arresting officer seized
Vinberg's driver's license and took him to the Havre police
station where he refused the breath test for alcohol required
by   the   implied   consent    statute,     §    61-8-402, MCA.        The
arresting officer incorrectly returned Vinberq's license to
him and did not issue him a temporary license.                 The officer
did not follow the procedure mandated by             §   61-8-402 when he
returned Vinbergls license; he should have seized the license
and issued Vinberg a 72 hour temporary driving permit.
     The     officer,      otherwise       correctly        following    §

61-8-402(3),    sent Motor      Vehicle    Division        (MVD) a    sworn
statement    that    he   had   reasonable       grounds    for   believing
Vinberg drove under the influence of alcohol and that Vinberg
had refused a chemical test.           On August 29, 1984 M T sent
                                                           TD
Vinberg a suspension order informing him that his license was
suspended for 90 days in accordance with            §    61-8-402 (5), MCA,
and informing him of his appeal rights.                 Until he received
this letter Vinberg continued to drive.              On August 31, 1984
he went to his attorney and, according to his testimony,
"turned in his license."         He did not drive from August 31,
1984 until September 5, 1984 when he petitioned for a hearing
and the District Court issued a stay order.                 A hearing was
held on September 24, 1984 and the District Court denied
Vinberg's appeal on October 3, 1984.                  He retains his license
pending this appeal.
       The issue Vinberg raises on appeal is whether the State
may suspend an individual's license pursuant to 5 61-8-402,
MCA,    when       the      arresting       officer   fails     to     seize   the
individual's license and fails to issue a 72 hour temporary
driving permit as required by B 61-8-402(4).                    Vinberg argues
that the statute is clear and unambiguous concerning issuing
a 72 hour permit; therefore not issuing it is fatal to the
enforcement of the statute.             He also argues that the failure
to issue a 72 hour permit results in a denial of his due
process rights so that the State is precluded from suspending
his license.
       We begin by           agreeing with Vinberg           that the statute
clearly and unambigously requires a 72 hour temporary driving
permit to be issued. However the officer's error did not
deprive Vinberg            of    property    because,    although the State
failed to issue him a temporary permit, it also failed to
seize his license.                An error in enforcing a statute does
not immediately preclude enforcement of the entire statute.
Vinberg is only entitled to relief if he were prejudiced by a
denial of due process.
       This Court need not reach the issue of whether a denial
of    due       process    precludes    suspendinq       a   driver's     license
because we find Vinberg received due process.                   The real issue
in this case is whether a hearing after suspension rather
than before, which was the ultimate effect of the failure to
issue       a     72      hour    permit,     deprived       Vinberg     of    his
constitutional right to due process.                    Although SS 61-8-402
and    403, MCA, provide a mechanism                  for a hearing before
suspension, in this case Vinberg's                    license was suspended
before he had a hearing.      However, we do not find this to be
an unconstitutional denial of due process.              The United States
Supreme Court, in Mackey v. Montryn (1979), 443 U.S.                1, 99
S.Ct. 2612, 61 L.Ed.2d     321, gave the criteria for determining
if the timing of a hearing on the suspension of a driver's
license satisfies due process.            They applied a three-prong
balancing test stated in Mathews v. Eldridge (1976), 424 U.S.
319, 335, 96 S. Ct. 893, 47 L.Ed.2d              18, to determine what
process is due to protect against erroneous deprivation of
property by administrative action.          They balanced the private
interest that will be affected, the risk of error, and the
government's   interest..     The       United   States Supreme Court
concluded that deprivation of a driver's license does not
require a presuspension hearing, "We conclude, as we did in
Love,   that   the   compel3 ing        interest   in    highwey    safety
iustifies the [State] in making summary suspension effective
pending the outcome of the prompt post-suspension hearing
avail-able." Mackey at 19, at 335.
     Vinberg   did   not    have    a    constitutional     right   to   a
pre-suspension hearing; due process is satisfied by a prompt
post-suspension hearing.       The timing of Vinberg's hearing
satisfied the criteria of Mackey for availability of a prompt
post-suspension hearing.       His license was suspended August
31, 1984, he stayed that suspension September 5, 1984 and was
given a hearing September 24, 1984.
     Vinberg also makes a notice argument.                He argues that
the State's failure to issue him a 72 hour permit resulted in
failure to give notice of his right to a hearinq regarding
the suspension of his license.          It is true that on August 31,
1984, when MVD suspended his license and notified him of his
appeal rights, he did not receive 72 more hours to seek a
stay.      However, although Vinberg's         license was suspended
before a hearing was held, that was caused by his choice of
.action, not the State's action.
       Vinberg knew he had been stopped for driving under the
influence.       He    is charged with     the knowledge that when
stopped with probable cause for driving und-er the influence
his license would be suspended if he refused to consent to a
chemical test.         Section 61-5-110, MCA, provides in part:
       "The division shall examine every applicant for an
       operator's or chauffeur's license           . . ..
                                                      Such
       examination shall include a test of the applicant's
        . . .knowledge - - traffic - -of this state,
                       of the          laws -
       .  . .. (Emphasis added.)
Vinberg simply cannot argue that the 72 hour permit was
necessary to give him notice that the State would suspend his
license.
       The record is unclear about whether he had. notice of his
right to appeal.        Vinberg urges us to find that failure to
inform him of that right precludes suspension.           We decline to
do so.    A petition to a court for a stay is not predicated on
a 72 hour permit.       He continued in possession of his driver's
license until the action of the MVD for suspension.             He was
then     given   a    prompt   hearing   and   a   temporary   stay   of
suspension.      He has no grounds to complain about lack of
notice of appeal rights at the outset.




We Concur:
