State Ex Rel. Colonel Sol v. Orcu

No. 14220

IN THE SUPREME COUfiT O THE STATE O MONTANA F F

S A E O MlWPANA, ex rel., C o r n JOE T T F R. SOL, Administrator, mntana Highway Patrol,

P l a i n t i f f and Respondent,

-VS-

JOHN WAYNE OFCUFF,

Defendant and Appellant.

Appeal frcnn: D i s t r i c t Court of t h e Seventh J u d i c i a l D i s t r i c t , Honorable L. C. Gulbrandson, Judge presiding.

Counsel of Record:

For Appellant :

Gene Huntley argued, Baker, mntana

For &spondent:

Hon. Mike Greely, Attomey General, H e l e n a , Wntana Richard S h n t o n argued, County Attomey, G l d i v e , bbntana Tcan Dowling argued, Helena, kbntana

Sdmitted: September 1 4 , 1978

Decided: JAN 31 9 ~ ~

Mr. Justice John C. Sheehy delivered the Opinion of the Court .

Appellant-defendant, John Wayne Orcutt, appeals from an order of the District Court, Seventh Judicial District, Dawson County, adjudging him to be an habitual traffic offender and ordering him to surrender his license to operate a motor vehicle. The County Attorney of Dawson County, under section 31-179, R.C.M. 1947, filed a verified complaint seeking to have John Wayne Orcutt declared an'habitual traffic offender, as defined in section 31-177(1), R.C.M. 1947. The District Court issued a show cause order and Orcutt answered, asserting the complaint did not state facts sufficient to constitute a claim against him and denying both that the exhibit attached to the complaint was a copy of the certified record of his driving violations and that the certified record indicated he had accumulated more than thirty conviction points for traffic violations. Hearing on the show cause order was had September 6, 1977, and on November 15, 1977, the District Court issued an order finding Orcutt to be the person named in the complaint, finding him to be an habitual traffic offender, and ordering him to surrender immediately his driver's license. Defendant appeals from such order and presents four issues for review: 1. Whether the defendant was entitled to a hearing before his driving privileges weresuspended for three years. 2. Whether the Montana Highway Patrol had authority to suspend his driving privileges without a hearing. 3. Whether section 31-147, R.C.M. 1947, relating to suspension of driving privileges by the Montana Highway Patrol was repealed by Chapter 362, Laws of 1974 (section 31+163, et seq., R.C.M. 1947). -2-

4. Whether the complaint to have defendant declared to be an habitual offender was invalid on its face. The State in seeking to revoke the driver's license relies on six claimed convictions, which, under section 31- 177(1), R.C.M. 1947, add up to thirty-three points calculated as follows: Operating a motor vehicle while his license to do so was suspended or revoked 10 points (Section 31-177 (1)(e), R.C.M. 1947) 2 convictions 20 points Speeding 3 points (Section 31-177 (1)(k), R.C.M. 1947 3 convictions 9 points Failure to report an accident in violation of the law 4 points (Section 31-177 (1)(g), R.C.M. 1947) 1 conviction 4 points Our consideration of the fourth issue is dispositive of the case. One of the offenses claimed against Orcutt is a conviction for failure to report an accident by the quickest means for a total of four conviction points. Under the habitual offender statute, section 31-177(g), R.C.M. 1947, it is provided: "Willful failure of the driver involved in an accident resulting in property damage of $250 to stop at the scene of the accident and give the required information or to otherwise fail to report an accident in violation of the law, 4 points;" The provisions of section 31-177(g), above quoted, could refer to convictions under two possible statutes. They are sections 32-1207, R.C.M. 1947, and 32-1208, R.C.M. 1947. Under section 32-1207, a driver who is involved in an accident resulting in injury to or the death of any person, or property damage to an apparent extent of $100.00 or more is required immediately by the quickest means of communication to give notice of the accident to the local police department or sheriff. Under section 32-1208, R.C.M& 1947, the driver

of a vehicle involved in an accident resulting in bodily injury to or death of any person, or total property damage to an apparent extent of $250.00 is required to give a written report of that accident to the Highway Patrol supervisor, Orcutt's driving record, which was submitted to the District Court as exhibit one, shcws an abstract of court record from a justice of peace court in Culbertson, in which the violation is recorded as "32-1207, failed to report accident quickest means". No other information is given with respect to this charge, particularly the date of the alleged charge, the place it occurred, the arresting officer, but most impcrtantly, that there was bodily injury or death involved or that apparent property danage in the amount of $100.00 or more was incurred. Each other claim of violation is supported by a copy of a surrmons, but in the case of this claimed conviction, the sm.ons is not appended and no other information appears in the record respecting this claimed violation. There is only a number reference to a sumtons with no other information attached. The District Court therefore assumed, without proof before it, as we must also assume, if we feel the charge is substantiated, that the conviction under section 32-1207, involved death, injury to a person, or property damage in the amount of $100.00 or more. There is no proof thereof in the record. We hold therefore, that there was insufficient record to substantiate the conviction for failure to report an accident by the quickest means. This means a reduction of four points charged against Orcutt leaving a total of twenty-nine, and under section 31-177(1), R.C.M. 1947, thirty or more points are required before defendant can be considered an habitual offender.

One other point raised by Orcutt in his appeal is that the record which was forwarded to the court and which constitutes exhibit no. 1 is not a "certified record" as required by section 31-181, R.C.M. 1947. That section makes admissible as evidence official abstracts of the records of convictions and bond forfeiturers in the custody of the administrator, which are " . . . certified in writing by the administrator to be a correct account of the said convictions and bond forfeitures . . . ". In this case, the record forwarded by the administrator of the Highway Patrol simply recited that it was "certified". While we do not decide this case on that point, we call to the attention of the administrator that his certificate of the record should include the statement set forth in the statute that it is a correct account of the convictions and bond forfeitures. With respect to the issue raised by Orcutt that he was not accorded a hearing by the District Court, we find that the record does indicate Orcutt was given a hearing based on the issues framed by the verified complaint and his written answer thereto. The issues with respect to the constitution- ality of the driver's license suspension procedures of Montana Highway Patrol, under section 31-147, R.C.M. 1947; the authority of the Highway Patrol; and the effect of the subsequent enactment of section 31-163, R.C.N. 1947, were not framed by the pleadings below, and no other record indicates that they were considered by the ~istrictCourt. Therefore, we will not consider such issues for the first time on appeal. Francis v. Heidel (1937), 104 Mont. 580, 68 P.2d 583. The order of the District Court is reversed.

We Concur: Mr. J u s t i c e John Conway H a r r i s o n d i s s e n t i n g :

I would a f f i r m t h e judgment of t h e D i s t r i c t C o u r t . In

s o d o i n g , I must d i s c u s s t h e i s s u e s p r e s e n t e d and m r e a s o n s y

f o r disagreeing with t h e majority holding.

I s s u e 1. Defendant a s k s whether he w a s e n t i t l e d t o a h e a r i n g b e f o r e h i s l i c e n s e was o r d e r e d s u r r e n d e r e d . Most a s s u r e d l y , h e was s o e n t i t l e d . S e c t i o n 31-184, R.C.M. 1947, mandates t h a t " t h e [ d i s t r i c t ] c o u r t s h a l l h o l d a h e a r i n g upon t h e show c a u s e o r d e r . " Based on t h e h e a r i n g , t h e c o u r t must f i n d t h a t t h e d e f e n d a n t e i t h e r i s o r i s n o t t h e p e r s o n named i n t h e c o m p l a i n t . I f t h e f i n d i n g i s t h a t t h e defend a n t i s t h e p e r s o n s o named, t h e c o u r t must t h e n make a second f i n d i n g , v i z . , whether t h e d e f e n d a n t i s a n h a b i t u a l t r a f f i c o f f e n d e r a s d e f i n e d i n s e c t i o n 3 1 - 1 7 7 ( 1 ) , R.C.M. 1947, b e f o r e a d j u d g i n g t h e d e f e n d a n t a n h a b i t u a l t r a f f i c o f f e n d e r , and o r d e r i n g him t o s u r r e n d e r t o t h e c o u r t h i s l i c e n s e t o o p e r a t e a motor v e h i c l e . The c o u r t h a s no d i s -c r e t i o n a s t o s o a d j u d g i n g and o r d e r i n g ; once t h e d e t e r -m i n a t i o n s have been made t h a t t h e d e f e n d a n t i s t h e p e r s o n named i n t h e c o m p l a i n t and t h a t t h e d e f e n d a , l t i s a n h a b i t u a l t r a f f i c o f f e n d e r , t h e c o u r t i s mandated t o f i n d and a d j u d g e t h e d e f e n d a n t a n h a b i t u a l t r a f f i c o f f e n d e r and t o o r d e r s u r r e n d e r of h i s d r i v e r ' s l i c e n s e .

Defendant h i m s e l f r e f e r s u s t o s e c t i o n 31-184, R.C.M. 1947, and b a l d l y asserts t h a t , w i t h r e s p e c t t o h i s h e a r i n g , t h e D i s t r i c t Court d i d n o t follow t h e provisions t h e r e i n . No s u p p o r t f o r t h a t a s s e r t i o n i s t o be found i n a p p e l l a n t ' s brief. I r e c o g n i z e t h a t " t h e Due P r o c e s s c l a u s e a p p l i e s t o t h e d e p r i v a t i o n of a d r i v e r ' s l i c e n s e by t h e S t a t e " , ~ i x o n v . Love ( 1 9 7 7 ) , 431 U.S. 1 0 5 , 1 1 2 , 97 S.Ct. 1723, 1727, 52 L E d 2d 1 7 2 , 179-80, c i t i n g B e l l v . Burson ( 1 9 7 1 ) , 402 U.S.

539, 91 S.Ct. 1586, 29 L Ed 2d 90, and find that due process was accorded the defendant herein. As mandated by section 31-184, R.C.M. 1947, there was a hearing, held on September 6, 1977, at which defendant was present, represented by counsel. Based on that hearing, the lower court issued an order on November 15, 1977, which contains an unambiguous finding that the defendant Orcutt is the person named in the complaint, which finds and adjudges him to be an habitual traffic offender, and which orders him to surrender his driver's license. The court acted in conformity with the statutory mandates, thus according defendant due process. Implicit in defendant's due process challenge is an ob- jection, made in passing elsewhere in appellant's brief, that the District Court "simply ruled that the defendant was an habitual traffic offender without ever setting the matter for trial or otherwise giving the defendant an opportunity to contest the contents of the abstract of driving record which had been offered in evidence against him." Orcutt thus hints at attempting to collaterally attack the convic- tions which spurred the proceeding to adjudge him an habi- tual traffic offender. That attempt must fail because "a defendant in a[n] habitual traffic offender proceeding is not entitled to collaterally attack the validity of the convictions supporting the action by alleging the impro- priety of the prior license suspension." State v. Petersen (1976), 16 Wash.App. 77, 553 P.2d 1110, 1111-12. As did the defendant in Dixon v. Love, 431 U.S. at 113, 97 S.Ct. at 1728, 52 L Ed 2d at 181, the defendant Orcutt has had the opportunity for a full judicial hearing in con- nection with each of the traffic convictions on which the court's decision was based. Orcutt's driving record clearly

shows c o n v i c t i o n s , a s d e f i n e d i n s e c t i o n 3 1 - 1 7 7 ( 2 ) , R.C.M. 1947, f o r d r i v i n g w h i l e t h e p r i v i l e g e t o do s o i s suspended ( t w o ) , s p e e d i n g ( t h r e e ) , and f a i l i n g t o r e p o r t a n a c c i d e n t by t h e q u i c k e s t means ( o n e ) . A l l c o n v i c t i o n s were w i t h i n t h e p e r i o d of F e b r u a r y 1 0 , 1975, t o A p r i l 11, 1977, a p p r o x i -m a t e l y two years--a time period w e l l w i t h i n t h e f i v e y e a r s d u r i n g which c o n v i c t i o n s p o i n t s accumulated by a l i c e n s e e a r e c o u n t e d toward h a b i t u a l t r a f f i c o f f e n d e r s t a t u s . Sect i o n 3 1 - 1 7 7 ( 1 ) , R.C.M. 1947. O r c u t t , by v i r t u e of h i s s i x c o n v i c t i o n s , accumulated t h i r t y - t h r e e p o i n t s , c a l c u l a t e d a s follows :

O p e r a t i n g a motor v e h i c l e w h i l e h i s l i c e n s e t o d o s o was suspended, 10 p o i n t s ( S e c t i o n 31-177 (1)( e ) , R.C.M. 1947)--two c o n v i c t i o n s ........ .20 points

S p e e d i n g , 3 p o i n t s ( S e c t i o n 31-177 (1)(k), R.C..M. 1947)--three convictions .... 9 points

F a i l u r e t o r e p o r t an accident i n v i o l a - t i o n s of t h e l a w , 4 p o i n t s (Section 3M77 (1)( g ) , R.C.M. 1947) --one c o n v i c - tion .................. 4 points

O r c u t t h a s had h i s day i n c o u r t and may n o t r e l i t i g a t e t h e i s s u e of g u i l t i n t h e suspension hearing. Zaba v . Motor V e h i c l e Div. (Colo. 1 9 7 3 ) , 516 P.2d 634, 638.

I s s u e 2. Defendant c h a l l e n g e s t h e a u t h o r i t y of t h e Montana Highway P a t r o l Board t o t w i c e suspend h i s d r i v i n g p r i v i l e g e s , p u r s u a n t t o s e c t i o n 31-147, R.C.M. 1947, t h e r e b y c a u s i n g him t o a c c u m u l a t e twenty p o i n t s toward t h e d e s i g n a -t i o n "habitual t r a f f i c offender". Section 31-177(1)(e), R.C.M. 1947. R e l y i n g on B e l l v . Burson ( 1 9 7 1 ) , 402 U.S. 535, 9 1 S.Ct. 1586, 29 L Ed 2d 90, d e f e n d a n t a r g u e s t h a t d u e p r o c e s s r e q u i r e s t h a t t h e S t a t e must a f f o r d n o t i c e and o p p o r t u n i t y f o r a h e a r i n g b e f o r e t h e t e r m i n a t i o n of t h e p r i v i l e g e t o d r i v e becomes e f f e c t i v e . Burson, which cent e r e d on a Georgia s t a t u t e , t h e o n l y p u r p o s e of which w a s t o obtain security from which to pay judgments against the

licensee resulting from the accident, was distinguished in ~ixon. he latter controls the disposition of the instant case, because the Montana statutes under consideration here are similar to those reviewed in Dixon and decidedly dis- similar to those subject of Burson. The Highway Patrol Board is authorized by section 31- 147, R.C.M. 1947, "to suspend the license or driving privi- lege of an operator or chauffeur without preliminary hearing

upon - showing % its records or other sufficient evidence a that the licensee . . . has been convicted with such £re- quency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disre- spect for traffic laws and a disregard for the safety of other persons on the highways . . ." (Emphasis added.) There is no procedural difficulty with such a provision. As the United States Supreme Court has noted, numerous courts have sustained the suspension or revocation of driving privileges, without prior hearing, where earlier convictions were on the record. Dixon v. Love, 431 U.S. at 114-15, 97 S.Ct. at 1728, 52 L Ed 2d at 181, and cases cited therein. In the case before us, defendant's convictions were on the record. If the record on which the Highway Patrol Board relied contained a clerical error, written objection to it would have put the Board on notice to inves- tigate and to correct the record if need be. Dixon v. Love, 431 U.S. at 113, 97 S.Ct. at 1728, 52 L Ed 2d at 180-81. Our statutes, including section 31-147, R.C.M. 1947, like those of Illinois under consideration in ~ i x o n ,have been enacted "to keep off the roads those drivers who are unable or unwilling to respect traffic rules and the safety

of o t h e r s . " Dixon v. Love, 431 U.S. a t 1 1 5 , 97 S.Ct. at 1729, 52 L Ed 2d a t 181. O r c u t t h a s d e m o n s t r a t e d such i n a b i l i t y o r u n w i l l i n g n e s s , a s e v i d e n c e d by h i s d r i v i n g r e c o r d r e p l e t e w i t h c o n v i c t i o n s f o r o f f e n s e s committed w i t h i n a s h o r t p e r i o d of t i m e . The Highway P a t r o l Board, with an eye t o p r o t e c t i n g those unsuspecting i n d i v i d u a l s using t h e p u b l i c thoroughfares, a c t e d p r o p e r l y i n suspending h i s privilege t o drive. See I n r e F r a n c e ( 1 9 6 6 ) , 147 Mont.

I s s u e 3. Defendant c l a i m s t h a t s e c t i o n 31-147, R.C.M. 1947, i s u n c o n s t i t u t i o n a l having been i m p l i e d l y r e p e a l e d by t h e enactment of C h a p t e r 362, 1974 Laws of Montana, c o d i f i e d a t s e c t i o n s 31-175 e t s e q . , R.C.M. 1947. T h i s argument i s advanced i n t h e f a c e o f h i s own r e f e r e n c e t o s e c t i o n 31-189, R.C.M. 1947, which r e a d s :

"Nothing c o n t a i n e d i n t h i s a c t s h a l l be c o n s t r u e d a s t o r e p e a l , modify o r amend any o t h e r laws o r p a r t s of l a w s , o r any e x i s t i n g o r d i n a n c e o f any p o l i t i c a l sub- division r e l a t i n g t o the operation or l i c e n s i n g of motor v e h i c l e s , t h e l i c e n s - i n g o f p e r s o n s t o o p e r a t e motor v e h i c l e s o r providing p e n a l t i e s f o r t h e v i o l a t i o n t h e r e o f ; nor s h a l l anything i n t h i s a c t be construed s o a s t o preclude t h e exer- c i s e of r e g u l a t o r y powers of any d i v i s i o n , agency, d e p a r t m e n t o r p o l i t i c a l s u b d i v i - s i o n of t h i s s t a t e o r of t h e f e d e r a l government h a v i n g t h e s t a t u t o r y power t o r e g u l a t e t h e o p e r a t i o n and l i c e n s i n g of motor v e h i c l e s and t h e l i c e n s i n g of motor vehicle operators. "

Our o b l i g a t i o n i n c o n s t r u i n g a s t a t u t e i s t o l o o k a t

i t s language. I f t h e l a n g u a g e i s c l e a r and unambiguous, t h e r e i s nothing t o construe, f o r t h e s t a t u t e speaks f o r

i t s e l f . I f t h e meaning of t h e s t a t u t e may be d i s c e r n e d from t h e p l a i n i m p o r t of t h e words u s e d , t h e C o u r t may n o t go beyond t h e language and a p p l y o t h e r means of i n t e r p r e t a t i o n . See, e.g., I n r e E s t a t e of B a i e r ( 1 9 7 7 ) , - Mont . , 567 P.2d 943, 34 St.Rep. 860, 863 and c a s e s c i t e d t h e r e i n .

S e c t i o n 31-189, R.C.M. 1947, i s c l e a r and unambiguous. I t d o e s n o t r e p e a l s e c t i o n 31-147, R.C.M. 1947. This determ i n a t i o n comports w i t h t h e a r t i c u l a t e d p u r p o s e of t h e a c t r e l a t i n g t o habitual t r a f f i c offenders.

" T h i s a c t i s p r e d i c a t e d upon t h e b e l i e f and p h i l o s o p h y t h a t i n n o c e n t d r i v e r s and o t h e r i n n o c e n t p a s s e n g e r s and p e d e s t r i a n s have a c o n s t i t u t i o n a l r i g h t t o l i v e , f r e e from f e a r of d e a t h o r i n j u r y from h a b i t u a l t r a f f i c o f - f e n d e r s . F u r t h e r , it i s t h e p u r p o s e of t h i s a c t t o r e d u c e t h e number of motor v e h i c l e accidents i n t h i s s t a t e , t o provide g r e a t e r s a f e t y t o t h e m o t o r i n g p u b l i c and o t h e r s , by denying t o t h e h a b i t u a l t r a f f i c o f f e n d e r s t h e p r i v i l e g e o f o p e r a t i n g a motor v e h i c l e upon t h e p u b l i c s t r e e t s and highways of t h i s state." S e c t i o n 31-175, R.C.M. 1947.

The l a n g u a g e i s s t r o n g and c l e a r - a n u n e q u i v o c a l r i g h t t o be f r e e of t h e menace posed by h a b i t u a l t r a f f i c o f f e n d e r s i s a f f o r d e d a l l i n n o c e n t u s e r s of t h e roadways of t h i s state. I n c o n t r a s t , Orcutt, a s an h a b i t u a l t r a f f i c offend e r , does n o t enjoy a c o n s t i t u t i o n a l l y guaranteed i l l i m i t -able r i g h t t o drive. See Zaba v . Motor V e h i c l e D i v i s i o n , 516 P.2d a t 637. The enjoyment of t h e p r i v i l e g e t o d r i v e a motor v e h i c l e depends o n compliance w i t h c o n d i t i o n s imposed by law and always i s s u b j e c t t o s u c h r e a s o n a b l e r e g u l a t i o n and c o n t r o l as t h e l e g i s l a t u r e sees f i t t o impose i n t h e e x e r c i s e of i t s p o l i c e power i n t h e i n t e r e s t of p u b l i c s a f e t y and w e l f a r e . S t a t e v . S c h e f f e l ( 1 9 7 3 ) , 82 Wash.2d 872, 514 P.2d 1052, 1057. O r c u t t h a s n o t complied w i t h t h e c o n d i t i o n s imposed by law; h i s d r i v e r ' s l i c e n s e w a s revoked and p r o p e r l y so. Had h e wished t o a v o i d t h e o p e r a t i o n and i m p a c t of t h e h a b i t u a l t r a f f i c o f f e n d e r s a c t , he s h o u l d have r e f r a i n e d from b r e a k i n g t h e law. S c h e f f e l , 514 P.2d a t

Defendant seems t o a r g u e t h a t by a l l o w i n g s e c t i o n 31-1 4 7 , R.C.M. 1947, t o s t a n d w i t h s e c t i o n s 31-175 e t s e q . ,

R.c.M. 1947, two entities, the Highway Patrol Bureau and the ~istrictCourt, will each be meting out "punishment" for the same offense. Defendant misconstrues the nature and purpose of these statutes. We reiterate: suspension or revocation does not constitute punishment as that term is understood in law. Suspension or revocation of a driver's license is for the protection of the public. Deprivation of the privilege to drive is the penalty imposed by statute, a penalty imposed for willful failure or refusal to obey laws relating to motor vehicle traffic and imposed to protect others. In re France, 147 Mont. at 288, 411 P.2d at 734; Anderson v. Comrn'r of Highways (1964), 267 Minn. 308, 126 N.W.2d 778, 783-84, 9 A.L.R.3d 746, 754. See also Barkett v. Lester (Okla. 1971) , 490 P. 2d 249. It is well settled that in a civil proceeding, which that to declare an individual an habitual traffic offender is, no question of double jeopardy arises. See, e.g., One Lot Emerald Cut Stones v. United States (1972), 409 U.S. 232, 93 S.Ct. 489, 34 L Ed 2d 438. Thus, defendant's com- plaint that, in virtue of being adjudged an habitual traffic offender he has been made subject to double jeopardy, is without foundation. Revocation of a driver's license under the act relating to habitual traffic offenders on the basis of previous convictions for violations is not intended as punishment, as we have said, but for the protection of the public. A prior suspension is not purged from a driver's record merely by reinstatement of his license and attendant privilege to drive, and so may be considered by the ~istrict Court in a proceeding to declare a driver an habitual traf- fic offender. Perlmutter v. State (Colo. 1976), 554 P.2d 691, 693; Campbell v. State (Colo. 1971), 491 ~ . 2 d 1385,

1390; and In re France, 147 Mont. at 288-89, 411 P.2d at 734-35. Operating a vehicle without a license is an offense "indicative of a callous disregard of the law by an irre- sponsible driver", State v. Bowles (1973), 113 N.H. 571, 311 A.2d 300, 302, and is properly considered in establishing that a defendant has accumulated the requisite number of conviction points within the statutory period. Given the avowed purpose of our statutes, defendant cannot be heard to complain that his constitutional rights have been violated. Issue 4. In his last effort to find fault with the proceeding adjudging him to be an habitual traffic offender, defendant alleges that the complaint filed by the county attorney was invalid on its face. Orcutt claims that he should not have been assessed four points for violating sec- tion 31-177 (1)(g), R.C.M. 1947, regarding failure to report an accident in violation of the law. He readily acknowl- edges that he was guilty of violating section 32-1207, R.C.M. 1947, requiring "[tlhe driver of a vehicle involved in an accident resulting in injury to or death of any person or property damage to an apparent extent of one hundred dollars ($100.00) or more" to "immediately by the quickest means of communication give notice of such accident" to the proper authorities. Section 31-177 (1)( g ) , R.C.M. 1947, states that four points are to be assessed against a "driver involved in an accident resulting in property damage of $250 to stop at the scene of the accident and give the required information - - otherwise - -to report - accident - or to fail an in violation - - - of the law . . ." (Emphasis added.) Even though he himself refers to the language underlined above, defen- dant argues that property damage resulting from an accident

must e q u a l o r exceed $250 b e f o r e t h i s s t a t u t e may be a p p l i e d i n c a l c u l a t i n g p o i n t s toward d e t e r m i n a t i o n of t h e s t a t u s of h a b i t u a l t r a f f i c o f f e n d e r ; t h a t it d o e s n o t a p p e a r on t h e r e c o r d t h a t O r c u t t ' s v i o l a t i o n of s e c t i o n 32-1207, R.C.M. 1947, was a s s o c i a t e d w i t h a n a c c i d e n t i n which t h e r e was t h e r e q u i s i t e $250 w o r t h of damage; t h a t , t h e r e f o r e , t h e f o u r p o i n t s were i m p r o p e r l y a s s e s s e d a g a i n s t O r c u t t ; and, t h u s , t h a t t h o s e f o u r p o i n t s s h o u l d be d e d u c t e d from t h e t h i r t y - t h r e e p o i n t t o t a l , l e a v i n g O r c u t t w i t h twenty-nine p o i n t s , t o o few upon which t o commence p r o c e e d i n g s t o d e c l a r e him an h a b i t u a l t r a f f i c offender. The argument i s s p e c i o u s .

Orcutt i s arguing, i n e f f e c t , t h a t a d r i v e r involved i n a motor v e h i c l e a c c i d e n t i n which t h e p r o p e r t y damage i s d e t e r m i n e d t o be w i t h i n t h e $100 t o $249 r a n g e , who v i o l a t e s s e c t i o n 32-1207, R.C.M. 1947, i s exempt from t h e o p e r a t i o n of t h e h a b i t u a l t r a f f i c o f f e n d e r s a c t , s e c t i o n 3 1 - 1 7 7 ( 1 ) ( g ) , R.C.M. 1947. Such a n argument v i o l a t e s t h e l e g i s l a t i v e i n t e n t e x p r e s s e d i n s e c t i o n 31-175, R.C.M. 1947, d i s c u s s e d above. V i o l a t i o n of s e c t i o n 32-1207, R.C.M. 1947, i s w i t h i n t h e a m b i t of t h e l a n g u a g e r e g a r d i n g f a i l u r e t o r e p o r t a n a c c i d e n t i n v i o l a t i o n of t h e law found i n s e c t i o n 31-177(1) ( 9 ) .

For t h e above r e a s o n s , I would a f f i r m t h e judgment of t h e D i s t r i c t Court.

Mr. Chief J u s t i c e Frank 1 concurring: 1

I concur i n t h e above d i s s e n t .

? AChief $p.%& u s t i c e d J