No. 93-332 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

CITY OF BILLINGS, MONTANA, 

Plaintiff and Respondent, 

-vsGILBERT BELGARDE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gilbert Belgarde, Box Elder, Montana, Pro Se 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

George Schunk, Assistant Attorney General, 

Helena, Montana 

Mary Jane McCalla, City Attorney's Office, 

Billings, Montana 

Filed: 

Submitted on Briefs: June 24, 1994 

Decided: July 26, 1994 
Chief Justice J.A. Turnage delivered the Opinion of the Court. 

Gilbert Belgarde appeals from his conviction of driving under 

the influence of alcohol (DUI) in violation of 3 61-8-401, MCA. We 

affirm the decision of the District Court for the Thirteenth 

Judicial District, Yellowstone County. 

Belgarde contends that his constitutional rights were violated 

when a blood sample was taken from him while he was unconscious, 

that the District Court improperly denied his motion to reschedule 

his trial date, and that the imposition of jail time for a DUI 

offense constitutes cruel and unusual punishment. 

Belgarde was charged with DUI after a Billings, Montana, city 

police officer found him unconscious behind the steering wheel in 

a vehicle which had crashed into a guardrail on a dead end street. 

Belgarde, who had been injured in the crash, was taken to a 

hospital. A blood test administered at the hospital showed a blood 

alcohol level of .24. 

As pointed out in the State's brief, the constitutionality of 

Montana's implied consent law has been upheld in prior decisions of 

this Court. State v. Rumley (1981), 194 Mont. 506, 509, 634 P.2d 

446, 448; State v. Deshner (1971), 158 Mont. 188, 192-93, 489 P.2d 

1290, 1292-93. Under the implied consent law, a peace officer who 

has reasonable grounds to believe a person has been driving while 

under the influence of alcohol is not required to obtain that 

person's consent before obtaining a blood test, if the person is 

unconscious or otherwise incapable of giving consent. See 5 61-8- 

2 
402 (2) , MCA. 

The State further points out that a decision to grant or deny 

a continuance lies within the discretion of the trial court. In 

his written motion asking the District Court to reschedule his 

trial, Belgarde failed to set forth any reasons in support of the 

motion. The trial transcript demonstrates that, in his oral 

discussion with the court prior to trial, Belgarde stated, as he 

does on appeal, that he wished to call an additional witness. The 

court explained to Belgarde that it was his duty to subpoena 

witnesses. Belgarde then withdrew his motion. This issue has 

therefore been waived. 

Belgarde was sentenced to serve six months in jail, with all 

but seven days of that sentence suspended. We have previously 

rejected the argument that a sentence including jail time 

constitutes cruel and unusual punishment, per se, for a DUI 

offense. State v. Bruns (1984), 213 Mont. 372, 377-79, 691 P.2d 

817, 820-21. Nor is the sentence imposed here, for a second 

offense DUI, so greatly disproportionate to the crime as to shock 

the conscience and outrage the moral sense of the community or of 

justice. We hold that Belgarde has not demonstrated that he has 

suffered cruel and unusual punishment. 

The decision of the District Court is affirmed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 
to Montana Law Week, State Reporter and West Publishing Company. 

c Chief Justice 

We concur: