No. 98-552
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 335N
JAN RAY SWANSON,
Petitioner and Appellant,
V.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Seventeenth Judicial District, In and for the County of Blaine, The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary R. Thomas, Thomas Law Office, P.C., Red Lodge, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Brenda Nordlund, Assistant Attorney General; Helena, Montana
Mark Harshman, Blaine County Attorney; Yvonne Laird, Deputy County Attorney, Chinook, Montana
Submitted on Briefs: May 25,200O
Decided: December 14,200O Filed: Justice Jim Regnier delivered the opinion of the Court.
ill Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited asprecedentbut shall be filed as
a public document with the Clerk of the SupremeCourt and shall be reported by case title,
Supreme Court causenumber, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable casesissued by this Court.
lI2 Appellant, Jan Ray Swanson,a driver licensedin the state ofwyoming, appealsfrom
a district court order denying his petition to reinstate his Montana driving privileges.
ll3 Swanson arguesthat his due processrights were violated when his privilege to drive
in Montana was suspendedandhis Wyoming driver’s license was seizedbecausehe refused
to submit to a breath test after his arrest for Driving Under the Influence of Alcohol.
Swanson doesnot challengethe basis for the initial investigation or arrest, nor is the fact of
arrest or testing refusal at issue. We affirm the District Court’s ruling, and find no due
process violation.
ll4 Swanson raises the following issues:
75 1. Did the District Court err in finding the information given to Swansonby a law
enforcement official relating to the potential penalties for refusal to take a breath test was
adequateto protect his due processrights?
l/6 2. Did the District Court err in finding the seizureand subsequentmailing to the
home state of a nonresident’sdriver’s licensewas lawful? BACKGROUND
17 On January3 1, 1998,at approximately 2:30 a.m., Montana Highway Patrolman Steve
Baiamonte approached a pickup truck stoppedjust off U.S. Highway 2, on a turnout in
Blame County. The lights were on and the enginewas running. On approachingthe vehicle,
Officer Baiamonte found Petitioner, Jan Ray Swanson asleep in the driver’s seat of his
pickup. Officer Baiamonte openedthe door to shut off the engine, and smelled the odor of
alcohol. After shutting off the engine, Officer Baiamonte awakened Swanson, who stated
he had pulled over to sleep. Swansonappeareddisoriented, and Officer Baiamonte observed
an open six pack of beer in the pickup. Officer Baiamonte then told Swanson to step out of
the vehicle and informed him that he was under arrest for driving under the influence of
alcohol (DUI).
ll8 Officer Baiamonte asked Swansonfor his driver’s license, registration, and proof of
insurance. He did not receive Swanson’sdriver’s license at that time. Officer Baiamonte
arrested Swanson and transported him to the Blaine County Sheriffs Office. Swanson was
subsequentlyprocessedfor the DUI charge.
19 During processing, Officer Baiamonte read the Montana Department of Justice
Implied Consent Advisory to Swanson. Among other things, the advisory form states that
refusal to submit to a breath or blood test will result in the seizure and suspensionof one’s
driver’s license for six months. It further provides that refusal to submit to similar testing
within the past five years, followed by anotherrefusal, will result in seizureofthe licenseand
3 revocation for one year. Officer Baiamonte then requested a breath sample, and Swanson
refused. Baiamonte seized Swanson’sdriver’s license. Baiamonte provided Swanson with
a “Notice of Suspensionor Revocation” stating, among other things, that a nonresident’s
driving privileges will be suspendedor revoked in the same manner as a resident’s,and that
the seized license is sent to the out-of-state driver’s home state with a copy of the report of
refusal. Officer Baiamonte subsequentlysent Swanson’sWyoming driver’s license to the
Montana Department of Justice with a copy of the refusal.
710 Swansonfiled a petition in the Seventeenth Judicial District Court, Blaine County, for
return of his Wyoming driver’s license and Montana driving privileges. A hearing was held
on July 28, 1998. The District Court issuedits Findings of Facts, Conclusions of Law, and
Order on August 28, 1998, denying Swanson’spetition for reinstatement of his Montana
driving privileges.
Ill The District Court concluded that Montana had the authority to suspend Swanson’s
nonresident driving privileges within Montana, and the authority to seize Swanson’s
Wyoming driver’s license. Swansonappeals.
ISSUE ONE
712 Did the District Court err in finding the information given to Swanson by a law
enforcement official relating to the potential penalties for refusal to take a breath test was
4 ll13 Swanson claims that the implied consent advisory is erroneous and misleading
becauseit fails to distinguish between the suspensionof a Montana-issued driver’s license
and the suspensionof a nonresident’sdriving privileges in Montana, thus violating his right
to due process. Specifically, Swansonassertsthat he possessed valid Wyoming driver’s a
license at the time of his arrest and, therefore, the information provided to him on the
advisory form, that ifhe retised the test, his driver’s licensewould be “seized and suspended
for six months” and if this was his secondref&al within five years, his driver’s license “will
be seizedand revoked for one year” was erroneous. In fact, Wyoming’s suspensionpenalties
are different than Montana’s, and thus he argues that he was misled by the information
provided. He also points out that although Montana may suspendor revoke his privilege to
drive in Montana, it has no authority to suspendor revoke his Wyoming driver’s license and
that only the State of Wyoming can do so. Therefore, he claims, any references in the
advisory form to Montana’sability to suspendor revoke his Wyoming driver’s licenseis false
and misleading. Swanson urges that nonresidentsshould simply be told that their &ivifzg
privileges ill Morztn~zn will be suspendedor revoked if they refuse the test.
714 The State arguesthat the advisementgiven to Swanson,though not specific as to the
effects of refusal on out-of-state drivers, was not misleading and sufficiently informed
Swanson of the actions taken if he refused the breath test.
;?I5 We review a district court’s denial of a petition for reinstatement of a driver’s license
to determine whether the court’s findings of fact are clearly erroneousand its conclusions of
5 law are correct. Ellenbwg v. Montann Dep’t ofJustice (199G),280 Mont. 268,270,929 P.2d
861,863; Bcrz~er State (1996), 275 Mont. 119, 122,910 P.2d 886,888. Whether a person’s v.
due processrights have beenviolated is a question of law. State v. Strand (1997): 286 Mont.
122, 124, 951 P.2d 552, 553.
116 Pursuant to Montana’s statutory licensing procedures, it is illegal to be in actual or
physical control of a vehicle on the highways of Montana while under the influence of
alcohol. Under Montana’s “Implied Consent” statute, any person driving on a public
highway in Montana is deemed to have consented to submit to a blood or breath test
administered at the direction of a peace officer. Sections 61-8-401 and -402, MCA. If a
driver refuses to submit to a breath or blood test at the request of a peace officer, the State
has the authority to suspend or revoke a Montana driver’s license or Montana driving
privileges. Sections 61-5-203,61-8-401 and -402, MCA.
117 The “implied Consent” statute does not specifically require an officer to provide
information to an arrestedmotorist asto the ramifications of refusal to take the requestedtest.
Sections 6 l-8-402, -404, and -405, MCA. In fact, a driver is not entitled to be informed that
he or shemay refuse the test. State v. Purrlie (1984), 209 Mont. 352,356,680 P.2d 576,579,
ovemrled on othergrotds by Hulse v. State,Dep’t ofJustice, Motor VehicleDiv., 1998 MT
108, 289 Mont. 1, 961 P.2d 75. Yet, we have previously held that improperly informing a
driver of the consequencesof refusing to take the test may invalidate the suspensionof a driver’s license. IPIye Matter of Oman (1986), 224 Mont. 332,335,73 1 P.2d 893, 895; see
also Walker v. State (1987), 229 Mont. 331, 335, 746 P.2d 624, 626.
718 This Court hasnot yet addressed exactly what information must be given to a motorist
before being asked to submit to a breath test. We decline to make such a determination
today. But, in the caseat hand, the advisory form was not erroneousnor did it affirmatively
mislead Swanson. The purposeof the advisory is to inform an apparently intoxicated driver
of the potentially serious consequences refusal to submit to a breath/blood test, and to of
inform the driver of his due processprotections such as independenttesting and availability
of posttesting hearings. An implied consentadvisory cannot inform every driver what the
“correct choice” may be in a certain situation. It merely infomrs the driver, in as clear a
manner as possible, of the potential dangersof each choice.
119 Officer Baiamonte informed Swanson,among other things, that if he refused the test,
his driver’s licensewould be seizedand suspended six months, and if this was his second for
refusal within five years, his driver’s license would be seizedand revoked for one year. In
addition, Officer Baiamonte, as required under law, gave Swanson written notice of the
suspensionor revocation and methodsto appealthe action. Section61-B-402(5), MCA. This
postadvisory notice, which was given to Swanson after he was arrested and his driver’s
license was seized, specifies that a nonresident’sdriving privileges will be suspendedor
revoked in the samemanner as thoseofresident drivers, and that his licensewould be mailed
7 to his home state with a copy of the report of refusal. The notice also provided information
on the availability of a hearing in the district court.
720 The precise question raised in this appeal is whether Swanson’sdue process rights
were violated becausehe was informed that his driver’s license, not his nonresident driving
privileges, would be affected if he refused to take the test. The District Court held that
Swanson was provided sufficiently accurateinformation as to the ramifications of a refusal
to submit to testing. We agree.
72 1 Swanson was told that his “driver’s license” would be seized and suspendedfor six
months if he refused the test. Section 61-l-136(3), MCA, provides that “driver’s license”
is broadly defined to include “any nonresident’sdriving privilege.” When $ 61-8-402(4),
MCA, directs the Department to “suspendthe license” upon receipt of a report of a testing
refusal, the phrase “suspend the license” necessarily includes the suspension of “any
nonresident’sdriving privilege.” Thusthe notice alerted Swansonofhow refusal affected his
driving privileges in Montana. When Swansonrefused the test and his license was seized,
he was given notice of the suspensionor revocation and the right to appeal the action
pursuant to 5 6 l-8-402(5), MCA. This notice statedthat “[a] nonresident’sdriving privileges
will be suspendedor revoked in the samemanner [as a resident’sdriving privileges], plus the
seized license is sent to the home state with a copy of this report.” As the District Court
noted, overstating the consequences could occur in Montana for failure to submit to the that
breath test was unlikely to coerceSwansoninto refusing to submit to the test. Swansondid
8 not take the test. Therefore, this is not a situation where a motorist was induced into taking
the test after being provided inaccurate information by a peaceofficer.
722 The state also correctly points out that the Wyoming implied consent law has no
bearing on this caseas is ultimately concededby Swanson. Wyoming’s implied consent law
is only invoked when a “person drives or is in actual physical control of a motor vehicle
upon a public street or highway itzthis state.” Wyo. Stat. Ann. 9 3 l-6-102(a)( 1). In addition,
Montana cannot, nor should it attempt to, be responsible for informing a driver of the
potential adverse actions that another state may commence upon discovery of a refusal to
submit to testing. As such, we do not addressthe effects of our actions upon Swanson’s
rights under Wyoming law. Such rights must be determined by our sister courts in other
states.
ISSUE TWO
123 Did the District Court err in finding the seizure and subsequentmailing to the home
state of a nonresident’sdriver’s license was lawful?
124 Swanson argues that it is unlawful for an agent of the State of Montana to seize his
Wyoming driver’s license for refusing to submit to a breath test. The State responds that
Montana statutesauthorize the Stateto suspendor revoke nonresidentdriving privileges and
seize nonresident drivers’ licenses.
725 Again, we review a district court’s denial of a petition for reinstatement of a driver’s
license to determine whether the court’s findings of fact are clearly erroneous and its
9 conclusions of law are correct. El/e/zburg, 280 Mont. at 270, 929 P.2d at 863; Bnue,-. 275
Mont. at 122, 910 P.2d at 888.
126 The State’s interest in depriving an intoxicated driver of permission to operate a
vehicle is particularly strong. By statute, any person who operatesor is in actual physical
control of a vehicle on Montana roads is consideredto have given consentto blood or breath
testing to detennine any alcohol or drugs in the person’sbody. Section 61-8-402(l), MCA.
A person may refuse the test, but doing so results in a seizureof the person’sdriver’s license
by a peaceofficer who sendsit to the Montana Department of Justice. Section 61-g-402(4),
MCA. Upon receipt of a resident’sdriver’s license,the Department suspendsor revokes the
driver’s license for a statutorily mandatedperiod of time. Section 61-g-402(4), MCA. For
nonresidents,Montana sendsthe nonresident’sdriver’s licenseto the issuing state, along with
a report of the nonresident’srefusal to take a breath test. Section 61-g-402(7), MCA.
127 We have consistently recognizedthe power of the State to regulate the licensing of
drivers in the interests of public safety. SeeState v. Deitclzler (1982), 201 Mont. 70,72,65 1
P.2d 1020, 1022; see also Mdcey \I. Montqm (1979), 443 U.S. 1,99 S. Ct. 2612,61 L. Ed.
2d321; Disorl v. Love(1977),431 U.S. 105,97 S. Ct. 1723,52 L. Ed. 2d 172; Bellv. Bwson
(1971), 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90. We have also recognized that the
government possessesthe police power to enact reasonablelegislation, even though the
regulation may frequently be an infringement of individual rights. Dietchler, 201 Mont. at
72,65 I P.2d at 1021. The generalrule that all legislative enactmentsare presumedvalid and
10 the burden of proving their invalidity is on the plaintiff is equally applicablein caseswhere
the legislation at issue is an exercise of police power. iZ/lcElwnOz Cozrnty of Flathead V.
(1991), 248 Mont. 231, 236, 811 P.2d 1267, 1271. Thus, the burden is on Swanson to
demonstrate the invalidity of the seizure requirement in the “Implied Consent” statute.
128 As we have previously held, once a driver’s license has beenissued, the licenseehas
an important interest in retaining it. Therefore, a license cannot be suspendedor revoked
without the procedural due process guaranteedby the Fourteenth Amendment. Seyferth v.
State, Dep’t ofJustice, Motor VehicleDiv. (1996), 277 Mont. 377,381, 922 P.2d 484,496-
97. Seealso State ex rel. Majerus V. Carter (1984), 2 14 Mont. 272,276, 693 P.2d 501, 503
(quoting Be//, 402 U.S. at 539 ,91 S. Ct. at 1589). What due process safeguards may be
necessaryin a civil caseare lessthan thoserequired in a criminal case. Majerus, 2 14 Mont.
at 276,693 P.2d at 504. Thus, we employ a traditional due processbalancing test to protect
against a potentially erroneous deprivation of a protectable property interest. This test
requires consideration of the nature and weight of the private interest affected by the official
action, the risk of an erroneousdeprivation asa consequence the summary procedure used of
and the probable value, if any, of additional or substitute procedural safeguards, and the
governmental interest, including the function involved, as well as any fiscal and
administrative burdens that might result from a substitute procedure sought. SeeMickey,
443 U.S. at 11; seealso Matthews v. Eldridge (1976), 424 U.S. 319,335,96 S. Ct. 893,903,
47 L. Ed. 2d 18. For analysis of the due processbalancing test in Montana, seegenerally, Bean v. Montma Board ofLabor Appeals (1998), 290 Mont. 496, 965 P.2d 256; Dot-wart
V. Cnln~c~y, 1998MT 191,290Mont. 196,966P.2d1121;1~zretheMc~tte,-ofM.F.(1982),
201 Mont. 277, 653 P.2d 1205.
129 Here, we seeno evidencethat the nature of the private interest involved (Swanson’s
interest in physical possessionof his license pending action from his home state) or its
weight compels a conclusion that the seizure proceduresunder the “Implied Consent” law
are unconstitutional. Certainly, there is a compelling governmental interest in removing
drunk drivers from the highways. Additionally, there is a low risk of an erroneous
deprivation of a license. Seizure of a driver’s license comes only after a peaceofficer, who
is a trained observer and investigator, has arresteda motorist for DUI, and the motorist has
refused to submit to testing. Swanson’s property interests in his license are suitably
protected, particularly in view of the availability of a postseizure hearing, the granting of a
temporary driving permit, and the fact that the seizure is of limited duration. Thus,
Swanson’sinjury by tlke loss of his license was nominal, and the postdeprivation remedies
made available by the $tate are more than sufficient to protect his minima1property interests.
Swansonhas not met hi:sburden of showing a dueprocessviolation, and provides no credible
argument showing that the nature and weight of his interest in possessionof his license
outweighs the State’si,lterest in keeping drunk drivers off the road.
12 1130 We affirm the District Court’s denial of Swanson’spetition for reinstatement of his
driver’s license.
We Concur:
Justices
13 Justice Terry N. Trieweiler concurring.
ll31 I concur with the majority’s conclusion that seizure ofthe Defendant’s driver’s license
and delivery to his home state was lawful. I also concur with the majority’s conclusion that
Swanson was not denied his right to due process by virtue ,of the State’sImplied Consent
Advisory Form. However, I disagree with the majority’s reasons for arriving at that
conclusion.
132 I specifically disagreewith the majority’s statement that “the advisory form was not
erroneous nor did it affirmatively mislead Swanson.” 1 18.
733 When Swanson was advised by a Montana law enforcement officer in the state of
Montana that the consequencefor refusal to submit to testing of his blood-alcohol level
would be suspensionof his Wyoming driver’s license for six months, he was misinformed.
The State ofMontana hasno authority to suspendSwanson’sWyoming driver’s license. The
only authority the StateofMontana haswith regard to nonresident drivers is found at $4 61-
8-402(7) and 61-S-203, MCA. The former provides not that an out-of-state driver’s license
will be suspendedupon refusal to submit to tests for blood-alcohol level, but that it will be
seized and sent to the licensing authority of the driver’s home state. The latter statute
provides that nonresident driver’s privileges to drive in Montana can be suspended. There
is no provision under Montana law for the suspensionof a Wyoming driver’s license.
134 The majority ignores the misinformation given to Swanson and other out-of-state
drivers based on a technical argument that Montana statutory law includes out-of-state
14 driving privileges in Montana within the definition of “driver’s license.” However, in the
context of the Implied Consent Advisory Form, which was read to Swanson, it is clear that
it is his actual Wyoming driver’s licenseand not his out-of-state driving privilege which he
is being told he will lose. Furthermore, the issueis whether someonewho submits or refuses
to submit to a test forblood-alcohol level has beenmisled. It is disingenuousto suggestthat
the suspect is not misled becauseof a broad statutory definition of “driver’s license” about
which the out-of-state driver knows nothing.
735 I would conclude that the advice given to Swansonwas incorrect and misleading by
overstating the consequences his refusal. Had he consentedto testing on the basis of that of
misinformation I would vote, as I did in State v. Si~~znzo~zs, MT 329, that his consent 2000
was invalidly obtained and that any evidence produced from that consent should be
suppressed.However, it doesnot logically follow that Swansonrefusedto submit to a blood-
alcohol test becausethe consequencesfor refusal were overstated. Therefore, unlike the
situation in State V.Simmons,I do not believe that Swansonacted to his detriment basedon
misinformation or coercion. For that reason,neither do I believe he has demonstrated that
his right to due processwas violated.
736 Therefore, although I do not agree with all that is said in the majority opinion, I
specially concur with its decision to affirm the judgment of the District Court.
J&ice
15 Justice William E. Hunt, Sr., joins in the foregoing concurring opinion.
Justice