*1 MONTANA, v. KEVIN OF STATE Aрpellant, Plaintiff Respondent. DELAP, LESLIE Defendant No. 88-601. 23, 1989. Submitted March Briefs May Decided P.2d Bozeman, Seel, plaintiff Becker, City Atty., E. P. Bruce Karl appellant. Johnstone, Bozeman, respondent. James A. for defendant Opinion MR. JUSTICE of the GULBRANDSON delivered Court. aрpeals Eighteenth
The State of Montana the order of the Judicial Court, County, dismissing charges against District Ke- Gallatin two Delap (Delap). city Bozeman, vin was convicted *2 Montana, 61-8-401, MCA, influence, violating driving of under the § 23-2-631, MCA, city and operating а snowmobile on a street. De- § lap appealed his conviction to the District Court which dismissed MCA, charges. 61-8-401, both In dismissing charge, the Dis- the § trict preclude Court noted that the State dismissal does 23-l-632(l)(b), MCA, from charging Delap under the snowmobile § DUI statute. We affirm the order of the District Court as to dismis- 61-8-401, MCA, sal of the charge. § police
On city Delap. December At Bozeman arrested arrest, Delap time his of was a His blood al- snowmobile. by cohol was determined a .174. breath test be Delap City After was charged, convicted in Court of both offenses appealed 14, he and was tried in District October 1988. trial, Following charge 61-8-401, the court dismissed the under § MCA, MCA, 23-2-631, inapplicable and found because a controlled § highway access was not involved. presents
The State appeal: two issues on a 61-1-103, MCA, Is snowmobile a vehicle as defined in and § subject thus prohibiting to the restrictions in § operation upon ways of a vehicle of the state while under the influence of alcohol? driving Does civil offense of a snowmobile under the while 23-2-623(l)(b).
influence of supersede alcohol in violation of § preclude 61-8-401, charging a defendant under MCA? 61-8-401, violating perti MCA. The part nent of provides: this statute (1) drugs.
“Persons under the influence of alcohol or It is unlawful punishable provided person in 61-8-714 and 61-8-723 who is under the influence of:
“(a) physical alcohol to drive or be in of a vehicle actual control upon ways open public[.]” of this state 61-8-401(l)(a), statute, Section in MCA. As this the term vehi- used cle is defined follows: “ every in, by any person upon, ‘Vehicle’ means or which or device property may transported public highway, be or ex- drawn cept power exclusively upon by statio- devices moved аnimal used 4, nary chapters the term means rails or in 3 and tracks. chapter in this part; ‘motor vehicle’ as defined this bicycle term does as defined 61-1-123.” not include language this reading plain Section MCA. Our of a vehicle. fits within this definition indicates may рerson property is a which device It is transported upon public highway under certain conditions. stationary power utilize rails or not driven animal and does not only bicycle, It fit within the definition of tracks. also does not in 61- Chapter as defined device excluded from Title 1-123, MCA. however, Title
We note are not defined snowmobiles specifically Chapter types although other of vehicles are Instead, as follows: defined therein. snowmobiles are defined “ an overаll self-propelled vehicle of ‘Snowmobile’ includes accessories, less, primarily excluding designed width of inches or ice, or runners for travel on snow or which be steered skis laws registered under the which is not otherwise or licensed statе Montana.” Further, 23-2-601(10), Chapter Title Section *3 provides statutory operation of regulation for the snowmobiles 23-2-631, particular Of public highways. and Section streets 23-2-632(l)(b), MCA, operation of a note which makes the is while under upon public highway street or unlawful habit-forming intoxicating liquor or or the influence of narcotics drugs. statutory the general commands that
The rule of construction Section over the statute. more statute shall control 93, 2, Chapter enacting legislature in MCA. The Titlе specificity concerns for duplicated with the motor vehicle code streets, roadways, public and regulation the of snowmobiles conjunction sec- highways. Viewing provisions in foregoing the accidents, licensing, enforce- рrovide registration, tions which for forfeitures, we find the ment, disposition penalties, of fines supplants motor statutory legislature provided a scheme which regarding code snowmobiles. vehicle 61-8-401,MCA, however, provides for crimi- State,
The contends § civil Chapter for nal sanctions while Title conflicting such, they supplemental rather sanctions. As Lot Emerald One imposed for same occurrence. See
349
Cut
Stones
34
question
L.Ed.2d
particular
“the
whether
statuto-
rily
penalty
statutоry
defined
is civil or criminal
is a matter of
con-
(Citations omitted.)
States v. Ward
United
struction.”
242, 248,
U.S.
A
65 L.Ed.2d
court’s
proper statutory
depends upon
determination of the
construction
(1)
determination
legislature expressly
of two issues:
whether
or
impliedly
сriminal,
(2)
penalty
legis-
labeled
as civil or
if the
penalty
civil,
lature has
statutory
identified the
whether
purpose
negate
scheme is “so
either in
or
as to
effect
that
Ward,
248-49,
intention.”
“(2) person willfully provision who act violates this or a regulation adopted pursuant rule or pay thereto shall civil ($50) fifty not less than dollars nor more than one thousand dol- ($1,000) lars sepаrate for each violation.” however, legislative history, explanation provide fails to as to an *4 why statute, legislature thereby changed naming as civil rather than criminal. label, however, v. dispositive. Allen always
The civil not will be Illinois (1986), 2988, 2992, 478 U.S. 106 S.Ct. 92 L.Ed.2d “civil, provide 304. We must also determine whether intent to has in sanctions so remedial mechanism” instead resulted Ward, to at 100 S.Ct. constitute a criminal U.S. Supreme where a at 2641. The United States Court has held that punish prohibit section exhibits “an intent to and to violations penalty.” . it state law . . the sum exacts [is] (1935), 227, 80 L.Ed. Constantine 296 U.S. 233, 239. 23-2-632(l)(b), MCA, in a under will result “civil conviction § separate
penalty” $15 less for each $500 than nor more than 23-2-642(2), person willfully MCA. if a violation. Section 23-2-632(l)(b), MCA, they pay a of not violates shall civil § $1,000 sеparate violation. Sec- $50 less than nor more than for each 23-2-642(3), tion penalty provision statutory fine action of levies a In operator violating provisions of state law.
snowmobile for certain 610-11, Helwig v. United States S.Ct. Supremе Court found that 47 L.Ed. the United States particu- punishment for a where the law levies fines or forfeitures act, penalties. fines lar those or forfeitures constitute criminal Such retribution, punishment, penalties reflect traditional aims of Constantine, at Further- deterrence. 296 U.S. at MCA, penal- more, we that while note § special applied ties are be revenue account collected education, justice safety any penalties collected which criminal fines are applied are funds to court traditional applied. penalties statutory its review of the scheme and attendant
Our 23-2-642(2) provided us to leads conclude penalties. MCA, punitive in nature and constitute supplants Having statutory scheme rather found that code, affirm supplements that we vehicle it incumbent motor Delap under the District Court’s decision that could not 61-8-401, MCA, public streets To hold other- highways under influence of alcohol. while construction, statutory 1-2- wise wоuld contradict a basic rule of 102, MCA, penalties for the provide conflicting criminal and would same act. dis- District Court’s in its brief that
The State also contends erroneous. charge against missal the § we charge, un- argument on this While we find merit the Stаte’s fortunately properly before this Court. issue is not find this *5 filing appeal designated appealing in its was State notice of that it MCA, charge the of the from the November dismissal 4(c), M.R.App.P., order of the District Court. Rule a appeal designate judgment, notice of the order or thereof “shall appealed designated appeal, from.” The State a of the order for any we appeal will not now consider an from other of the analysis foregoing order. We set forth the the of charge simply guidance purposes.
The order of the District Court is affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRI- SON, SHEEHY, HUNT and WEBER concur. McDONOUGH,
MR. JUSTICE
dissenting:
legislative
may
body
impose both
and civil
criminal
sanctions for
One Lot
Cut
Emerald
Stones v. United
the same
occurrence. See
States
409 U.S.
The prеmise uses the incorrect that the two statutes are in inconsistent order to its prevails reach conclusion that the over the in arriving legislature of at the intention under 1-2-102, MCA. two The statutes are not inconsistent. One crimi- is nal, civil, serving one purposes different requiring different proof. separate body law; burdens of Each is of a each has a different enforcing method of sanctions and establishes different punishment. majority expresses puzzlement The with the 1974 statutes, to noting legislаtive amendments the snowmobile that history explain why to legislature changed fails from history, to civil. resorting legislative to it before change should be legislature noted that in 1974 made its face resolved conflict that have existed with the Motоr Vehicle Code. Helwig majority Supreme
The cites the U.S. in Court decision 47 L.Ed. proposition punish- that where law levies fine forfeiture as act, particular ment for that fine constitutes a criminal Helwig Helwig is misreading an case. im- dealt porter of pulp shipment pur- wood who had undervalued his for the poses avoiding discovery Upon customs fees. undervalua- tion, required Helwig pay Federal Government to the difference between the fee he was been and the fеe he should have Helwig’s by more charged. shipment Because was undervalued 10%, “ad- termed an he was also assessed what the customs statutes Helwig percentage fee” on the of the undervaluation. ditional based trial, in provided for brought before a U.S. Circuit Court for claiming “addi- objected jurisdiction by law. to customs He had penalty, district tional fee” was fact a courts jurisdiction involving or forfeiture. exclusive cases jurisdiction The Su- dispute about under customs law. was thus prеme penalty, the word the additional fee be a but found appears opinion. “criminal” nowhere in the event, so penalties in this are not In the civil case sanctions penalties. The civil constitute criminal *6 roughly equal criminal are the snowmobile statutes monetary are con- in the Motor Code sanctions Vehicle insofar cerned, There numerous them criminal. are but this does make monetary actually crimi- exceeded cases where civil sanctions have damages monetary sanctions; e.g., nal criminal fraud fraud, property deemed penalties, civil forfeiture antitrust puni- case, saying In this the civil sanctions to be contraband. nature, converting designated majority tive and criminal regular though even criminal civil statute into a criminal statute ma- penalties, levies such as incarceration. more severe a more jority applies to overrule then it as a criminal statute inconsistency no statute when there is fundamental crimi- for trial on the between the two. I would reverse and remand charge. nal