No. 04-829 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2006 MT 93 

THE CITY OF GREAT FALLS, 

Plaintiff and Respondent, 

 v. 

GAYLE ABRAHAM MORRIS, 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Eighth Judicial District, 

In and For the County Cascade, Cause No. ADC 2004-238, 

Honorable E. Wayne Phillips, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

Kenneth R. Olson, Olson Law Office, Great Falls, Montana 

For Respondent: 

 Honorable Mike McGrath, Attorney General; Mark Mattioli, 

 Assistant Attorney General, Helena, Montana 

David V. Gliko, City Attorney; Tony P. Lucas, Assistant 

City Attorney, Great Falls, Montana 

 

 Submitted on Briefs: December 29, 2005 

 Decided: May 4, 2006 

Filed: 

__________________________________________ 

Clerk 
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Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Following jury convictions in Great Falls Municipal Court on charges of 

misdemeanor driving under the influence (DUI) and careless driving, Gayle Abraham 

Morris filed an appeal in the Eighth Judicial District Court, Cascade County. The District 

Court affirmed the Municipal Court, and Morris filed an appeal with this Court. 

¶2 We restate the issues as follows: 

¶3 1. Does the statutory provision that a jury may infer from the refusal to take a 

sobriety test that the defendant was under the influence of drugs or alcohol 

unconstitutionally place the burden of proof on the defendant? 

¶4 2. Did the Municipal Court err in not instructing the jury to distrust weaker 

and less satisfactory evidence? 

¶5 3. Did the evidence support a conviction of careless driving? 

BACKGROUND 

¶6 Morris owns a bar and supper club west of Great Falls. On December 21, 2003, 

after finishing a late shift at the bar, Morris consumed a couple amaretto drinks, 

performed his closing duties and began his drive home. Close to four in the morning, 

Officer Travis Palmer observed Morris driving eastbound on Tenth Avenue South in 

Great Falls. Although Officer Palmer’s vehicle was equipped with a video camera 
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mounted on the dashboard, he did not activate the camera as he followed Morris.1 The 

camera automatically began recording, however, when Officer Palmer turned on his 

overhead lights to initiate the traffic stop. 

¶7 With no video of Morris’s driving prior to being pulled over by Officer Palmer, 

the only evidence presented to the jury regarding the DUI and careless driving charges 

consisted of testimony from law enforcement and Morris. Officer Palmer testified that he 

observed Morris’s vehicle swerve severely left to right, failing to maintain its presence in 

one lane. At one point, according to Officer Palmer, Morris made a sharp turn so as to 

avoid striking the median; he then turned sharply the other direction to compensate. 

Based on his six years of experience, Officer Palmer believed Morris to be impaired. 

Officer Palmer testified that when he approached Morris’s vehicle after pulling him over, 

Morris rolled down his window two inches and immediately handed over his driver’s 

license, insurance and registration information. According to Officer Palmer, Morris 

exhibited slurred speech, glassy red eyes and smelled of alcohol. 

¶8 Sergeant Chris Hickman and Officer Shane Sorenson arrived at the scene shortly 

after the stop and similarly testified that Morris showed signs of alcohol impairment. 

When Officer Palmer asked Morris to perform field sobriety tests, Morris exited the car 

and stated that he would not do any of the tests. Upon being asked to remove the gum 

from his mouth, Morris had a difficult time, requiring several attempts. 

1

Officer Palmer testified that he never activates the video camera when following 

DUI suspects. He also commented that 95 percent of officers do not utilize the 

equipment. 
 4 

¶9 At the police station, Morris again refused to perform sobriety tests and would not 

take a breath test. After law enforcement read Morris his Miranda rights, Morris stated 

that he had three amaretto drinks at the end of his work shift. 

¶10 At trial, Morris took the stand in his own defense, asserting that he drove safely on 

the evening of his arrest. Morris also testified that he actually had less than three 

drinks—closer to two and a half—prior to the bar’s 2:00 a.m. closing. As a means of 

explaining his near collisions with the median, Morris told the jury that he regularly 

drives on the high side of the roadway, close to the median, in order to see traffic more 

easily. As for his trouble removing the gum from his mouth, Morris testified that his 

difficulties had nothing to do with alcohol impairment, but simply the stickiness of the 

gum. He blamed the glassy red appearance of his eyes on smoke from the bar. 

¶11 After the jury convicted Morris, he appealed to the District Court issues regarding 

jury instructions and sufficiency of the evidence, all of which the court affirmed. Morris 

now appeals the same issues to this Court. 

STANDARDS OF REVIEW

¶12 The trial court has broad discretion when it instructs the jury. Statutes carry the 

presumption of constitutionality; therefore the party making the constitutional challenge 

bears the burden of proving, beyond a reasonable doubt, that the statute is 

unconstitutional, and any doubt must be resolved in favor of the statute. Because the 

issue of whether a defendant’s due process rights were violated is a question of law, we 

review the district court’s conclusion to determine whether its interpretation of the law 
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was correct. State v. McCaslin, 2004 MT 212, ¶ 14, 322 Mont. 350, ¶ 14, 96 P.3d 722, 

¶ 14. 

¶13 When the defendant challenges the sufficiency of the evidence to support the 

conviction, the applicable standard of review is whether, upon viewing the evidence in 

the light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the offense beyond a reasonable doubt. State v. Black, 2003 MT 

376, ¶ 29, 319 Mont. 154, ¶ 29, 82 P.3d 926, ¶ 29. 

DISCUSSION 

¶14 1. Does the statutory provision that a jury may infer from the refusal to 

take a sobriety test that the defendant was under the influence of drugs or alcohol 

unconstitutionally place the burden of proof on the defendant?

¶15 Over Morris’s objection, the Municipal Court gave Jury Instruction 10, including 

language set forth in § 61-8-404(2), MCA: 

If the person under arrest refused to submit to one or more tests as provided 

in this section, proof of refusal is admissible in any criminal action or 

proceeding arising out of acts alleged to have been committed while the 

person was driving or in actual physical control of a vehicle upon the ways 

of this state open to the public, while under the influence of alcohol, drugs, 

or a combination of alcohol and drugs. The trier of fact may infer from the 

refusal that the person was under the influence. The inference is 

rebuttable. [Emphasis added.] 

¶16 Morris argues that § 61-8-404(2), MCA, as it applies to him, is unconstitutional 

because, in his view, the statute’s language requires the State to submit no evidence of 

Morris’s guilt beyond the fact that he refused the breathalyzer test. Having reviewed the 

jury instructions as a whole, as well as § 61-8-404, MCA, in its entirety, we disagree. 
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¶17 Turning to Jury Instruction 10, we note that a singular instruction cannot be judged 

in a vacuum. 

In analyzing evidentiary presumptions in a criminal case, the reviewing 

court must focus on the particular language used to charge the jury and 

determine whether a reasonable juror could have interpreted the challenged 

instruction as an unconstitutional presumption. 

 “Analysis must focus initially on the specific language challenged, 

but the inquiry does not end there. If a specific portion of the jury charge, 

considered in isolation, could reasonably have been understood as creating 

[an unconstitutional presumption], the potentially offending words must be 

considered in the context of the charge as a whole. Other instructions 

might explain the particular infirm language to the extent that a reasonable 

juror could not have considered the charge to have created an 

unconstitutional presumption.” 

State v. Leverett (1990), 245 Mont. 124, 127, 799 P.2d 119, 120-21 (quoting 

Francis v. Franklin (1985), 471 U.S. 307, 315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 

344, 354). 

¶18 Reviewing the instructions as a whole, which the court specifically directed the 

jury to do, we conclude that the burden of proof did not unconstitutionally shift to Morris. 

To begin with, the court unambiguously told the jury that Morris was “not required to 

prove his innocence or present any evidence.” The court also instructed the jury to 

presume Morris innocent, unless the City of Great Falls proved through all of the 

evidence that Morris was guilty beyond a reasonable doubt. Additionally, the court 

directed the jury to carefully consider all testimony and only reach a guilty verdict if it 

determined, in light of the evidence, that the elements of the crime charged had been 

proven beyond a reasonable doubt. Based on the above, we conclude that § 61-8-404(2), 
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MCA, as applied to Morris by Instruction 10, did not impermissibly shift the burden of 

proof onto Morris. 

¶19 In addition, we note that all statutes carry with them a presumption of 

constitutionality, and we construe statutes narrowly to avoid an unconstitutional 

interpretation if feasible. Farrier v. Teacher’s Retirement Board, 2005 MT 229, ¶ 13, 

328 Mont. 375, ¶ 13, 120 P.3d 390, ¶ 13. “Whenever possible, [this] Court will adopt 

statutory construction which renders challenged statutes constitutional rather than a 

construction which renders them invalid. When construing a challenged statute, the 

Court will read and interpret the statute as a whole, without isolating specific terms from 

the context in which they are used by the Legislature.” State v. Martel (1995), 273 Mont. 

143, 148, 902 P.2d 14, 17 (citations omitted). If there is any doubt regarding constitutionality, we resolve the issue in favor of the statute. Farrier, ¶ 13. Additionally, we 

interpret statutes so at to give effect to the legislative will, while avoiding an absurd 

result. Colmore v. Uninsured Employers’ Fund, 2005 MT 239, ¶ 82, 328 Mont. 441, 

¶ 82, 121 P.3d 1007, ¶ 82. 

¶20 Section 61-8-404, MCA, states in pertinent part: 

 61-8-404. Evidence admissible – conditions of admissibility. (1) 

Upon the trial of a criminal action or other proceeding arising out of acts 

alleged to have been committed by a person in violation of 61-8-401, 61-8-

406, 61-8-410, or 61-8-805: 

 (a) evidence of any measured amount or detected presence of 

alcohol, drugs, or a combination of alcohol and drugs in the person at the 

time of a test, as shown by an analysis of the person’s blood or breath, is 

admissible. A positive test result does not, in itself, prove that the person 

was under the influence of a drug or drugs at the time the person was in 

control of a motor vehicle. A person may not be convicted of a violation of 
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61-8-401 based upon the presence of a drug or drugs in the person unless 

some other competent evidence exists that tends to establish that the person 

was under the influence of a drug or drugs while driving or in actual 

physical control of a motor vehicle within this state. 

 . . . . 

 (2) If the person under arrest refused to submit to one or more tests 

as provided in this section, proof of refusal is admissible in any criminal 

action or proceeding arising out of acts alleged to have been committed 

while the person was driving or in actual physical control of a vehicle upon 

the ways of this state open to the public, while under the influence of 

alcohol, drugs, or a combination of alcohol and drugs. The trier of fact may 

infer from the refusal that the person was under the influence. The 

inference is rebuttable. 

 (3) The provisions of this part do not limit the introduction of any 

other competent evidence bearing on the question of whether the person 

was under the influence of alcohol, drugs, or a combination of alcohol and 

drugs. 

Section 61-8-404, MCA (emphasis added). 

¶21 Analyzing this statute as a whole, we conclude that subsection (2) must be read as 

requiring the production of other competent corroborating evidence of a DUI. In light of 

the fact that subsection (1)(a) requires corroborating evidence when a person actually 

takes a drug test, to interpret subsection (2) as not requiring corroborating evidence when 

a person refuses to take the test would create an absurd result. In this case, the State 

presented corroborating evidence that Morris was driving while under the influence, 

including testimony from law enforcement that Morris exhibited erratic driving, slurred 

speech, red eyes and the odor of alcohol on his breath. 

¶22 Moreover, we note that the admissibility of a defendant’s refusal to take a 

breathalyzer test presupposes other competent evidence in the form of probable cause to 
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make the arrest in the first instance—in this case, poor driving, slurred speech, red eyes 

and the odor of alcohol. Although Morris provides an explanation for his behavior and 

appearance, he has not challenged the probable cause to make the arrest. 

¶23 We hold that the court did not err in instructing the jury on the provisions of § 61-

8-404(2), MCA. 

¶24 2. Did the Municipal Court err in not instructing the jury to distrust 

weaker and less satisfactory evidence?

¶25 At trial, the Municipal Court denied the following jury instruction proposed by 

Morris: 

If weaker and less satisfactory evidence is offered and it appears that it is 

within the power of the party to offer stronger and more satisfactory 

evidence, it is presumed that the evidence withheld would be adverse to the 

party. The evidence that is offered should be viewed with distrust. 

¶26 Morris argued to the District Court that the jury should have been instructed on the 

above language because, according to Morris, the State failed to offer the best evidence to 

prove Morris was driving under the influence when Officer Palmer chose not to 

videotape Morris’s driving. Morris acknowledges that there is no video of Morris 

driving, but nonetheless argues that the State violated “the spirit” of § 26-1-602(6), MCA, 

by not utilizing the video equipment. The District Court rejected this argument on the 

grounds that Morris failed to cite authority “other than his stretched construction of § 26-

1-602, MCA.” 

¶27 On appeal, Morris again fails to provide any legal authority in support of his 

argument. Regardless, § 26-1-602(6), MCA, presumes the existence of actual and 
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identifiable evidence, which did not exist in this case. While Morris argues that the State 

should have had a video recording of his driving, the fact remains that the State did not 

have such evidence. The District Court correctly affirmed the Municipal Court’s refusal 

of Morris’s proposed instruction on distrusting weaker evidence. 

¶28 3. Did the evidence support a conviction of careless driving?

¶29 Morris argues that the evidence presented at trial failed to support a conviction of 

careless driving, pursuant to § 61-8-302(1), MCA, which states: 

A person operating or driving a vehicle on a public highway shall drive it in 

a careful and prudent manner that does not unduly or unreasonably 

endanger the life, limb, property, or other rights of a person entitled to the 

use of the highway. 

¶30 Morris contends that the evidence presented at trial did not support a conviction 

under the above statutory language. Specifically, Morris argues that because he did not 

come into close proximity to any other vehicle, driver or pedestrian, the evidence does 

not establish proof beyond a reasonable doubt that he drove in a legally careless manner. 

The District Court was correct in rejecting this argument. Section 61-8-302(1), MCA, 

requires careful and prudent driving at all times. The statutory concern with 

“endanger[ment]” does not require that the driver come into close proximity to another 

vehicle or pedestrian for there to be carelessness. In light of the evidence before the jury, 

the District Court correctly concluded that a rational jury could determine that Morris 

drove carelessly. 
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¶31 Affirmed. 

 /S/ W. WILLIAM LEAPHART 

 

We concur: 

/S/ JAMES C. NELSON 

/S/ PATRICIA COTTER 

/S/ JIM RICE 

/S/ BRIAN MORRIS