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Wylie v. Wyoming Department of Transportation12/21/1998
ye v. State, 864 P. 2d 1234, 1237 (Mont. 1993). Section 401 establishes that a person is presumed under the influence of alcohol when his blood alcohol content is 0.10 or greater. In contrast, Section 406 is violated when blood, urine or a breath test establishes an alcohol content of 0.10 or greater without consideration of whether the driver's ability to drive is impaired by the intoxicant. As the district court noted when it affirmed WYDOT's revocation action, Wyoming criminalizes these two distinct acts in one statute. WYO. STAT. § 31-5-233(b) (1997) states:
(b) No person shall drive or have actual physical control of any vehicle within this state if the person:
(i) Has an alcohol concentration of ten onehundredths of one percent (0.10%) or more; or
(ii) To a degree which renders him incapable of safely driving;
(A) Is under the influence of alcohol;...
The Montana Supreme Court considered the issue of whether a driving under the influence (DUI) conviction under § 61-8-401 and a second conviction for a blood alcohol concentration (BAC) violation under § 61-8-406 within a five year period required revoking driving privileges for one year. Horton, 717 P. 2d at 1109. Under the civil penalty statute, MONT. CODE. ANN. § 61-5-208(2), the penalty was six months for the first violation of either statute and one year for a subsequent conviction within five years of the first offense. Horton contended that a BAC conviction was not equivalent to a DUI conviction and the dissimilarity of the two statutes made it unreasonable to enhance the civil penalty. Horton ruled that, for civil penalty purposes, the operation of a motor vehicle with an alcohol concentration of 0.10 or more is clearly similar in nature to the offense of driving under the influence of alcohol. It held that it was the legislative intent that a one year license revocation was required upon a BAC conviction within a five year period of a DUI conviction. Horton, 717 P. 2d at 1109-1110.
As shown by decisions by the Montana Supreme Court and the plain language of the statutes, Montana considers a BAC violation to be a driving under the influence of alcohol violation. WYO. STAT. § 31-7-127's mandate to revoke a driver's license when the licensee is convicted of driving under the influence either in this state or in other jurisdictions shows a legislative intent to remove drunk drivers from Wyoming roadways. In addition, Wyoming is a member of the Driver License Compact, as is Montana, and is obligated to consider this Montana conviction as part of a license revocation procedure if the offenses are of a "substantially similar nature." WYO. STAT. § 31-7-201 (1994); MONT. CODE ANN. § 61-5-401 (1995). Given this legislative mandate by Wyoming's statutory scheme, WYDOT had an obligation to determine if the Montana statute's intent was to impose a prohibition against driving under the influence and, if so, apply that conviction towards mandatory license revocation. See McGuire, 809 P. 2d at 274. We hold WYDOT correctly determined that the recent Montana conviction was to be considered a third conviction within five years and, consequently, a revocation was mandated.
CONCLUSION
The revocation was not arbitrary, capricious, or an abuse of discretion. Wylie does not dispute the agency's finding that he had three convictions within a five year period, and we hold that the revocation of his driver's license under the statute was proper. We affirm the district court's order upholding the revocation order.
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