STATE v DELAP

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No. 88-601 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Appellant, -vsKEVIN LESLIE DELAP, Defendant and Respondent. APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Joseph Gary, Judge presiding. COUNSEL OF RECORD: For Appellant: Bruce E. Becker, City Attorney, Rozeman, Montana Karl P. Seel, Rozeman, Montana For Respondent: James A. Johnstone, Bozeman, Montana Submitted on Briefs: March 23, 1989 Decided: May 10, 1989 Mr. Justice I. , Court. C. Gulbrandson delivered the Opi-nion of the The State of Montana appeals the order of the Court, Gallatin County, Eighteenth Judicial District Delap dismissing two charges against Kevin Delap (Delap) wa.s convicted in City Court in Bozeman, Montana, of violating § 61-8-401, MCA, driving under the Infl.uence, and § 23-2-631, MCA, operating a snowmobile on a city street. Delap appealed his conviction to the District Court which dismissed both charges. In dismissing the 5 61-8-401, MCA, charge, the District Court noted thet the dismissal does not preclude the State from charging Delap under 5 23-2-632(1)(b), YCA, the snowmobile DUI statute. We affirm the order of the District Court as to dismissal of the $3 61-8-401, MCA, charge. On December 13, 1987, Bozeman city police arrested Delap. At the time of his arrest, Delap was operating a snowmobile. His blood alcohol was determined by a breath test to be . 1 7 4 . After Delap was convicted in City Court of both offenses charged, he appealed and was tried in District Court on October 14, 1988. Following trial, the court dismissed the charge under § 61-8-401, MCA, and found 5 23-2-631, MCA, inapplicable because a controlled access highway was not involved. The State presents two issues on appeal: 1. Is a snowmobile a vehicle as defined in § 61-1-103, MCA,and thus subject to the restrictions in § 61-8-401, MCA, prohibiting the operation of a vehicle upon the ways of the state while under the influence of alcohol? 2. Does the civil offense of driving a snowmobile while under the influence of alcohol in violation of . S 23-2-623 (1)( b ) s u p e r s e d e and p r e c l u d e c h a r g i n g a d e f e n d a n t under 5 61-8-401, MA C? Delap was c h a r g e d w i t h v i o l a t i n g S 61-8-401, MCA. The p e r t i n e n t p a r t of t h i s s t a t u t e provides: P e r s o n s under t h e i n f l u e n c e o f a l c o h o l o r d.rugs. (1) I t i s u n l a w f u l and p u n i s h a b l e a s p r o v i d e d i n 61-8-714 and 61-8-723 f o r any p e r s o n who i s under t h e i n f l u e n c e o f : ( a ) a l c o h o l t o d r i v e o r be i n a c t u a l p h y s i c a l c o n t r o l of a v e h i c l e upon t h e ways o f t h i s s t a t e open t o t h e p u b l i c [ . ] S e c t i o n 61-8-401(1) ( a ) , MCA. A s used in this statute, the term v e h i c l e is defined a s follows: " V e h i c l e " means e v e r y d e v i c e i n , upon, o r by which any p e r s o n o r p r o p e r t y may be transported or drawn upon a public highway, e x c e p t d e v i c e s moved by animal power o r used e x c l u s i v e l y upon s t a t i o n a r y r a i l s o r tracks. However, i n c h a p t e r s 3 and 4 , t h e t e r m means "motor v e h i c l e " a s d e f i n e d i n t h i s p a r t ; and i n c h a p t e r 8 , p a r t 4 , t h i s term does n o t i n c l u d e a b i c y c l e a s d e f i n e d i n 61-1-123. S e c t i o n 61-1-103, this statute Our r e a d i n g o f t h e p l a i n language of MCA. indicates d e f i n i t i o n of a vehicle. a snowmobile fits within this A snowmobile i s a d e v i c e upon which a p e r s o n o r p r o p e r t y may be t r a n s p o r t e d upon a p u b l i c highway under c e r t a i n c o n d i t i o n s . and d o e s n o t u t i l i z e does n o t L t i s n o t d r i v e n by animal power stationary r a i l s or tracks. It a l s o a bicyc!e, the only f i t within t h e d e f i n i t i o n of d e v i c e e x c l u d e d from T i t l e 6 1 , Chapter 8 , p a r t 4 , a s d e i i n e d i n S 61-1-123, MCA. W n o t e however, e that snowmobiles a r e n o t d e f i n e d i n T i t l e 61, Chapter 8 , p a r t 1, a l t h o u g h o t h e r t y p e s o f v e h i c l e s a r e s p e c i f i c a l l y defined therein. defjned a s follows: Instead, snowmobiles a r e "Snowmobile" incl-udes any selF-propelled vehicle of an overall width of 48 inches or less, excluding accessories, designed primarily for travel on snow or ice, which may be steered by skis or runners and which is not otherwise registered or licensed under the laws of the state of Montana. Section 23-2-601(10), MCA. Further, Title 23, Chapter 2, part 6, provides statutory regulation for the operation of snowmobiles on public streets and highways. Section 23-2-631, MCA. Of particular note is S 23-2-632 (1)(b), MCA , which makes the operation of a snowmobil.e upon a public street or highway unlawful while under the influence of intoxicating liquor or narcotics or habit-forming drugs. The general ru1.e of statutory construction commands t.hat the more specific statute shall control over the general statute. Section 1-2-10?, MCA. The legislature in enacting Title ?3, Chapter 2 , part 6, duplicated with specificity the motor vehicle code concerns for regulation of snowmobiles upon the public streets, roadways, and highways. Viewing the foregoing provisions in conjunction with secti-ons which provide for registration, licensing, accidents, enforcement, penalties, and. disposition of fines and forfeitures, we find. the legislature provided a statutory scheme which supplants the motor vehicle code regarding snowmobil-es. The State, however, contends S 61-8-401, MCA, provides for criminal sanctions while Title 23, Chapter 2, part 6, provides for civil sanctions. As such, they are supplemental rather than conflicting and may be imposed for the same occurrence. See One Lot Emerald Cu-t Stones v. United States (1972), 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438. However, "the question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory (Citations omitted. ) Uni ted States v. Ward construction." (1980), 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.~d.2d 742, 749. A court's determination of the proper statutory construction depends upon a determination of two issues: (1) whether the legislature expressly or impliedly labeled the penalty as civil or criminal, and ( 2 ) if the legislature has identified the penalty as civil, whether the statutory scheme is "so punitive either in purpose or effect as to negate that intention." Ward, 448 U.S. at 248-49. When making the second inquiry, "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground." (Citations omitted.) Ward, 448 U.S. at 249. After consideration of the first level test in light of the statutes relevant to this case, we find clear legislative intent to impose a civil penalty for operating a snowmobile upon the streets or highways of this state while under the influence of drugs or alcohol. Section 23-2-642, MCA, clearly states that the penalty levied for violation of 55 23-2-601 through 23-2-644, MCA, is a civil penalty. Examination of the legislative history of Title 23, Chapter 2, part 6, shows this part originally provided that violation of any section of the act was considered a criminal misdemeanor, "punishable by fine or imprisonment or both" under the laws applying to persons owning or operating motor vehicles when the violation occurred on public highways. Section 53-1023, R.C.M. 1947 (1971). This penalty provision was amended by the 1974 legislature, to read a5 follows: 53-1 023. Penalties. (1) A person who violates any provision of this act or a rule and regulation adopted pursuant thereto shall pay a civil penalty of not less than fifteen dollars ($15) nor more than five hundred dollars ($500) for each separate violation. (2) A person who will-fully violates any provision of thjs act or a rule or r e g u l a t i o n adopted pursuant t h e r e t o s h a l l pay a c i v i l p e n a l t y o f n o t l e s s t h a n f i f t y d o l l a r s ($50) n o r more t h a n one ($1,000) for each thousand dollars separate violation. The legislative history, however, fails to provide an e x p l a n a t i o n a s t o why t h e l e g i s l a t u r e changed t h e s t a t u t e , t h e r e b y naming the penalty as c i v i l rather than criminal. The civil label, however, wi1.l not always be clispositive. A l l e n v . I l l i - n o i s ( 1 9 8 6 ) , 478 U.S. 364, 369, 106 S.Ct. 2988, determine whether 2992, 92 L.Ed.2d intent to 296, 304. provide a F e must a l s o 7 "civil, remedial mechanism" h a s i n s t e a d r e s u l t e d i n s a n c t i o n s s o p u n i t i v e a s t o c o n s t i t u t e a criminal penalty. Ward, 4 4 8 I1.S. a t 249. The United S t a t e s Supreme Court h a s h e l d t h a t where a s e c t i o n e x h i b i t s " a n i n t e n t t o p r o h i b i t and t o p u n i s h v i o l a t i o n s o f s t a t e law .. . S t a t e s v. Constantine [is] a penalty." United ( 1 9 3 5 ) , 296 1J.S. 287, 295, 5 6 S.Ct. t h e sum it e x a c t s 223, 227, 80 L.Ed. 233, 239. c o n v i c t i o n under A 23-2-632(1) (b), MCA, will. r e s u l t i n a " c i v i l p e n a l t y " o f n o t l e s s t h a n $15 n o r more t h a n $500 for each However, MCA, separate if a violation. person 23-2-642 ( 2 ) , YCA. Section willfully S 23-2-632(1) (b), violates t h e y s h a l l pay a c i v i l p e n a l t y o f n o t l e s s t h a n $50 n o r more than $1,000 for each separate violation. Section 23-2-642 ( 3 ) , MCA. T h i s s t a t u t o r y p e n a l t y p r o v i s i o n l e v i e s a f i n e upon t h e action of a snowmobile p r o v j - s i o n s o f s t a t e law. 188 U . S . the United levies act, 605, 6 1 0 - 1 1 , States fines or those penalti-es. operator for violating I n Helwig v . ITnited S t a t e s ( 1 9 0 3 ) , 33 S . C t . 427, Supreme Court 429, found 47 L . E d . t h a t where f o r f e i t u r e s a s punishment fines or certain forfeitures 614, 616, the law for a particular constitute criminal Such p e n a l t i e s r e f l e c t t h e t r a d i t i o n a l . aims o f punishment, retribution, and deterrence. Constantine, ?96 U.S. at 295. Furthermore, we note that S 23-2-644, MCA, provides that while the penalties collected are to be applied to a special revenue account for snowmobile safety and education, any penalties collected in justice court are applied to the traditional funds to which criminal fines are applied. Our review of the statutory scheme and its attendant penalties leads us to conclude the penalties provided in S 23--2-642 (2) and (3), MCA, are puniti~~e in nature and constitute criminal penalties. Having found that the statutory scheme supplants rather than supplements the motor vehicle code, it is incumbent that we affirm the District Court's decision that Delap could not he charged under 5 61-8-401, MCA, for operating a snowmobile upon public streets and highways while under the influence of alcohol. To hold otherwise would contradict a basic rule of statutory construction, 5 1-2-102, MCA, and would provide conflicting criminal penalties for the same act. The State also contends in its brief that the District Court's dismissal of the S 23-2-631, MCA, charge against Delap was erroneous. While we find merit in the state'^ argument on this charge, we unfortunately find this issue is not properly before this Court. The State in filing its notice of appeal designated that it was appealing the dismissal of the S 61-8-401, MCA, charge from the November 17, 1988, order of the District Court. Rule 4(c), M.R.App.P., provides a notice of appeal "shall designate the judgment, order or part thereof appealed from." The State designated a part of the order for appeal, and we will not now consider an appeal from any other part of the order. We set forth the foregoing analysis of the 5 23-3-631, MCA, charge simply for guidance purposes. The order of the D i s t r i . c t C o u r t i s a f f i \ We c o n c u r : / Mr. Justice R. C. Mcnonough dissents: A legislative body may impose both criminal and civil sanctions for the same occurrence. See One Lot Emerald Cut Stones v. United States (1972), 409 1T.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438. That has been d-one here in explicit terms. The majority uses the incorrect premise that the two statutes are inconsistent in order to reach its conclusion that the specific prevails over the general in arriving at the intention of the legislature under § 1-2-102, MCA. The two statutes are not inconsistent. One is criminal, one is civil, serving different purposes and requiring different burdens of proof. Each is part of a separate body of l c r an; each has a different method of enforcing sanctions and establishes a different punishment. The majority expresses puzzlement with the 19?4 amendments to the snowmobile statutes, noting that the legislative history fails to explain why the legislature changed the penalty from criminal to civil. However, before resorting to legislative history, it should be noted that the change made by the legislature in 1974 on its face resolved any conflict that may have existed with the Motor Vehicle Code. The majority cites the U.S. Supreme Court decision in Helwig v. United States (1903), 188 U.S. 605, 23 S.Ct. 427, 47 L,.Ed. 614, for the proposition that where a law levies a fine or forfeiture as punishment for a particular act, that fine constitutes a criminal penalty. This is a misreading of the Helwig case. Helwig dealt with an importer of wood pulp who had undervalued his shipment for the purposes of avoiding customs fees. Upon discovery of the undervaluation, the Federal Government required Helwig to pay the difference between the fee he was charged and the fee he should have been charged. Because Helwig ' s shipment was undervalued by more than l o % , he was also assessed what the customs statutes termed an "additional fee" based on the percentage of the Helwig was brought before a U.S. Circuit undervaluation. Court for trial, as provided for in customs law. He objected to jurisdiction by claiming that the "additional fee" was in fact a penalty, and district courts by statute had exclusive jurisdiction in cases involving a penalty or forfeiture. The dispute was thus about jurisdiction under customs law. The Supreme Court found the additional fee to be a penalty, but the word "criminal" appears nowhere in the opinion. In any event, the civil sanctions or penalties in this case are not so punitive as to constitute criminal penalties. The civil penalties in the snowmobile statutes are roughly equal to the criminal penalties in the Motor Vehicle Code insofar as monetary sanctions are concerned, but this does not make them criminal. There are numerous cases where civil monetary sanctions have actually exceeded criminal monetary sanctions; e .g. , criminal fraud and punitive damages for fraud, antitrust penalties, and civil forfeiture of property deemed to be contraband. Jn this case, by saying the civil sanctions are punitive and criminal in nature, the majority is converting a designated ci~7iJ. statute into a criminalstatute even though the regular criminal statute levies more severe penalties, such as incarceration. The majority then applies it as a specific criminal statute to overrule a more general criminal statute when there is no fundamental inconsistency between the two. T would reverse and remand for trial on the criminal charge.

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