Montana Attorney General Opinion 16-330

Opinion No. 330. Highway Patrol-Intoxicated Drivers -Patrolmen-Fines. HELD: 1. Sections 1746.2 and 1741.7 (11), R. C. M. 1935, relating to intoxicated drivers, are both in effect. 2. Where an arrest is made under either of said sections by a Highway Patrolman, any finc.3 received should be paid to the State Treasurer as pro- vided in Section 1741.2, R. C. M. 1935; where the arrest is made by any other peace officer, the fines do not prop- erly belong to the State Highway Patrol Revolving Fund. Mr. Oscar C. Hauge County Attorney Havre, Montana July 20, 1936. We have your letter of July 15, relative to statutes against intoxi- cated drivers. Section 1746.2, R. C. M. 1935, to which you refer, was enacted as Sec- tion 3 of Chapter 166, Laws of 1929, and prohibits the operation of a mo- tor vehicle by anyone "* * * upon or over any highway, street or public thoroughfare of the State of Mon- tana, whether within or without a municipality while intoxicated or un- der the influence of intoxicating liq- uor or of any drug or narcotic * * *." Section 1741.7 (11) R. C. M. 1935, of the Montana Highway Patrol Act, which was enacted as Chapter 185, Laws of Montana 1935, declares it to be an offense against that act to drive "* * * a motor or other vehicle while intoxicated * * * upon the main or secondary highways of the state of Montana outside of incorporated cities or towns." Although said Chapter 185 is the later enactment, we see nothing therein which can be said to repeal said Section 1746.2, either expressly or impliedly. The two are not in con- flict. Both may be enforced. And for the offense of driving while in- toxicated outside the limits of incor- porated cities or towns, the prosecu- tor may elect to proceed under either of them. In re Wilson's Estate, 102 Mont. --, 56 Pac. (2d) 733; 16 Cor- pus Juris 69, and 59 Corpus Juris 917, et seq. . Section 1741.12 of the Highway Patrol Act provides: "* * * All fees, fines and forfeitures collected in any court from persons apprehended or arrested by patrolmen for violation of this Act and the laws and regulations relating to the use of state highways and the operation of vehicles thereon must be paid to the State Treasurer of Montana, and by him credited to the State Highway Patrol Revolving Fund, and a separate account shall be kept thereof; * '" *." Now it is our opinion that a high- way patrolman may arrest those who violate either Section 1746.2 or Sec- OPINIONS OF THE ATTORNEY GENERAL 329 tion 1741.7 (11), supra. If the of- fense occurs within the boundaries of an incorporated city the defendant should be charged with violating Sec- tion 1746.2, supra., but in either event when the arrest is made by a State Highway Patrolman any fines re- ceived should be paid to the State Treasurer, as provided in Section 1741.2, quoted above. In the event that the arrest is made by a sheriff, or other peace officer, even though the defendant be charged with violat- ing some provision of the Highway Patrol Act, the fines received do not properly belong to the State Highway Patrol Revolving Fund.