No. 00-432 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 150 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

RICHARD LEE PRICE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Marge Johnson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Carl B. Jensen, Jr., Attorney at Law, Great Falls, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; Jim Wheelis, 

Assistant Attorney General, Helena, Montana 

Brant Light, Cascade County Attorney; John Parker, Deputy County 

Attorney, Great Falls, Montana 

 Submitted on Briefs: February 21, 2002 

Decided: July 2, 2002 

Filed: 

__________________________________________ 

Clerk
2 

Justice Terry N. Trieweiler delivered the Opinion of the Court. 

¶1 By Information filed in the District Court for the Eighth 

Judicial District in Cascade County, the Defendant, Richard Lee 

Price, was charged with driving under the influence of alcohol 

(DUI), a fourth or subsequent offense, and four misdemeanors: 

failure to wear a seatbelt, driving while the privilege to do so is 

revoked, failure to yield the right of way, and failure to exhibit 

proof of insurance. Prior to trial, Price pled guilty to the 

misdemeanors. Following a jury trial, Price was convicted of the 

DUI charge and for that offense was sentenced to twelve months 

imprisonment, and an additional four years of probation. For the 

misdemeanors, the District Court fined Price and sentenced him to 

two days in jail for driving with a revoked license and ten days in 

jail for failure to exhibit proof of insurance. All sentences were 

to run consecutively. The misdemeanor jail sentences were deemed 

served because Price had served eighteen days in jail awaiting 

trial. The District Court credited the remaining six days of time 

served to Price's DUI sentence. Price appeals from his DUI 

conviction and the District Court's application of time served. We 

affirm both the conviction and the sentence of the District Court. 

¶2 The following issues are presented on appeal: 

¶3 1. Did sufficient evidence exist to support Price's DUI 

conviction? 

¶4 2. Did the District Court properly award credit for time 

served? 

FACTUAL AND PROCEDURAL BACKGROUND 
3 

¶5 On March 15, 1999, the State charged Price by Information with 

one count of DUI, a fourth or subsequent offense, in violation of § 

61-8-401, MCA (1997), as well as four misdemeanor offenses. In 

support of the DUI charge, the State alleged that "Defendant 

operated or was in actual physical control of a motor vehicle, a 

1988 gray Chevrolet Beretta, on a way of this state open to the 

public, Fourth Street North, while under the influence of alcohol." 

 The misdemeanors for which Price was charged included failure to 

wear a seatbelt, driving while the privilege to do so is revoked, 

failure to yield the right of way, and failure to exhibit proof of 

insurance. All offenses were alleged to have occurred in Great 

Falls, Montana, on March 5, 1999. 

¶6 Price pled guilty to the misdemeanors prior to trial. The DUI 

charge was tried before a jury on January 18, 2000. At trial, the 

State first called Great Falls police officer Shane Sorenson as a 

witness. Sorenson testified that at approximately 9:30 p.m. on 

March 15, 1999, he was on duty in his patrol car when he observed 

Price drive his vehicle from a stop sign and into the path of an 

approaching vehicle, which struck Price's vehicle on the driver's 

door. After the accident, Sorenson approached each vehicle to 

check for possible injuries. Price informed Sorenson that his neck 

hurt. Sorenson then crawled into the back seat of Price's vehicle 

and immobilized Price's neck until medical personnel arrived. 

¶7 Sorenson noticed that Price had alcohol on his breath and that 

his speech was slurred. According to Sorenson, Price was asked by 

medical personnel whether he had been drinking that night, and 

Price responded affirmatively. Sorenson, however, was concerned 
4 

that Price's incoherence may have been caused by a possible 

concussion given the nature of the accident. 

¶8 Sorenson testified he then met with Price at the hospital 

approximately forty-five minutes to an hour after the accident. 

Sorenson noticed that Price's speech was still slurred, his eyes 

appeared to be bloodshot, and he still smelled of alcohol. Price 

was read his Miranda warning and given the Montana Implied Consent 

Advisory. Although Price initially agreed to give a blood sample, 

he subsequently refused citing his fear of needles. Price then 

agreed to give a breath sample. However, after Sorenson retrieved 

his portable breath tester, Price again refused, based on his 

professed belief that breath tests were inaccurate. Sorenson then 

issued Price a DUI citation "[g]iven the secondary indicators that 

I observed, given the eyes being bloodshot and glazed, given the 

incoherence and slurred speech, given the odor of the alcoholic 

beverages, then the primary indicator being impaired judgment, 

being that he pulled out directly in front of an oncoming vehicle 

at night with it's [sic] headlights on . . . ." Sorenson did admit 

that if Price had taken a breath test which produced negative 

results for alcohol, he would not have issued Price a citation. 

 

¶9 Price testified that when he pulled up to the stop sign prior 

to the accident, he and his girlfriend, Shelly Simons, were 

involved in an argument, and that out of frustration and anger, he 

accelerated. Price testified that after the accident, everything 

was a "blur," and that the impact of the collision caused his 

slurred voice. 
5 

¶10 Price did admit that he had been drinking prior to the 

accident. Price testified that at about 3:30 or 4:00 p.m., he and 

Simons shared approximately three-quarters of a quart of beer. 

Sometime later, Price drank what he characterized as "less than a 

beer" at Jakers, a local restaurant and casino. At about 7:00 

p.m., Price and Simons went to a friend's house, where they stayed 

until about 9:00 p.m. At the friend's house, Price had a couple 

more beers. In all, Price admitted to consuming the equivalent of 

five beers in a six hour span. However, Price testified to his 

belief that the alcohol did not affect his driving. 

¶11 Two other witnesses testified. Simons, who was with Price at 

the time of and preceding the accident, testified that Price's 

voice was not "incoherent or slurred" before the accident. She 

also testified that despite his consumption of alcohol, Price was 

not intoxicated. The final witness at trial was Price's emergency 

room physician, Dr. Betty Kuffel. Kuffel testified that when Price 

arrived at the hospital, he was "completely restrained and smelled 

of alcohol. He was cooperative. His speech was slurred and he 

appeared intoxicated." She identified no medical condition such as 

a head injury that would have accounted for Price's slurred speech. 

¶12 Price filed a motion for a directed verdict based on his 

contention that there was insufficient evidence to support the 

conviction. His motion was denied. The jury convicted Price of 

DUI on January 18, 2000. On May 15, 2000, the District Court 

sentenced Price to the Department of Corrections for twelve months, 

followed by an additional four years of probation. For the 

misdemeanors, the District Court imposed fines and sentenced Price 
6 

to two days in jail for driving with a revoked license and ten days 

in jail for failure to exhibit proof of insurance. All sentences 

were to run consecutively and the misdemeanor jail sentences were 

deemed served because Price had already served eighteen days in 

jail awaiting trial. The District Court then credited Price with 

six days of time served toward his DUI sentence. 

¶13 Price objected to the manner in which the District Court 

awarded credit for time served, and requested full credit for time 

served toward each charge for which he was held following his 

arrest. On May 16, 2000, Price filed a Notice of Appeal. The 

District Court issued a final written judgment on June 26, 2000. 

STANDARD OF REVIEW 

¶14 We review the sufficiency of the evidence to support a jury 

verdict to determine whether, after viewing the evidence in a light 

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

have found the essential elements of the crime beyond a reasonable 

doubt. State v. Merrick, 2000 MT 124, ¶ 7, 299 Mont. 472, ¶ 7, 2 

P.3d 242, ¶ 7. 

¶15 The District Court's award of credit for time served in this 

case was based on a statutory interpretation. A statutory 

interpretation is a conclusion of law, which we review to determine 

whether the district court's interpretation of the law is correct. 

State v. Sullivan (1994), 266 Mont. 313, 318, 880 P.2d 829, 832. 

 

DISCUSSION 

ISSUE 1 
7 

¶16 Did sufficient evidence exist to support Price's DUI 

conviction? 

¶17 Price contends that the State failed to provide sufficient 

evidence to support his DUI conviction. Specifically, he argues 

that Officer Sorenson's admission that he would not have cited 

Price for DUI had he taken a breath test and tested negative was an 

admission that there was insufficient evidence to convict. 

¶18 The State asserts that there was sufficient evidence, without 

a breath test, to convict Price of DUI. The State contends that 

Sorenson's response was not an admission that the evidence was 

insufficient, but simply a response to a hypothetical question. 

The State asserts that the conviction in this case was supported by 

a variety of factors, including Sorenson's observation of Price's 

driving behavior, Price's incoherent and slurred speech, the odor 

of alcohol on Price, Price's admission that he had been drinking, 

Price's bloodshot eyes, and the emergency room physician's 

observations. 

¶19 In State v. Lias (1985), 218 Mont. 124, 127, 706 P.2d 500, 

502, we explained the substantial evidence test: 

In applying the substantial evidence test to determine 

whether there was sufficient evidence to support the jury 

verdict, this Court is governed by established 

principles. In applying the test the evidence is viewed 

in a light most favorable to the prevailing party. The 

weight of the evidence and the credibility of the 

witnesses are exclusively the province of the trier of 

fact. If the evidence conflicts, it is within the 

province of the trier of fact to determine which shall 

prevail. The test is met if a reasonable mind would 

accept the evidence as supporting the conclusion reached. 

[Citations omitted.] 

The manner in which a vehicle is driven can be evidence of driving 

under the influence of alcohol. State v. Peterson (1989), 236 
8 

Mont. 247, 250, 769 P.2d 1221, 1223. The State is not required to 

produce evidence of a quantifiable blood alcohol content to 

demonstrate a defendant is under the influence of alcohol. See 

generally State v. Brady, 2000 MT 282, ¶ 28, 302 Mont. 174, ¶ 28, 

13 P.3d 941, ¶ 28 (stating in the context of a DUI case that "the 

State is not obligated to supply any specific type of evidence: a 

jury may consider the facts and circumstances of an accident and 

the observations and opinions of witnesses, giving effect to the 

evidence it finds credible."). 

¶20 In this case, substantial evidence supported the jury's 

verdict. Sorenson himself, who testified to investigating 

"probably 30" DUI charges within the past year, witnessed Price's 

driving behavior. Price recklessly entered an intersection from a 

stop sign without regard to oncoming traffic. Following the 

accident, Sorenson observed that Price's speech was incoherent and 

slurred, and that he smelled of alcohol. Price himself admitted 

that he had been drinking prior to the accident. The emergency 

room physician testified that Price smelled of alcohol, his speech 

was slurred and that he appeared intoxicated. Taken as a whole, we 

conclude that a rational trier of fact could have found beyond a 

reasonable doubt that Price was driving under the influence of 

alcohol. Therefore, the DUI conviction is affirmed. 

ISSUE 2 

¶21 Did the District Court properly award credit for time served? 

¶22 The District Court sentenced Price to jail time for three 

charges. For the misdemeanors, Price was sentenced to two days in 

jail for driving with a revoked license and ten days for failure to 
9 

provide insurance. For the DUI conviction, Price was sentenced to 

twelve months to the Department of Corrections. The District Court 

ordered Price's sentences to run consecutively. To account for the 

time Price spent in county jail awaiting trial, the District Court 

credited Price with eighteen days of time served. The District 

Court first applied Price's credit to the misdemeanor jail 

sentences, a combined twelve days, and then applied the remaining 

six days of credit toward the DUI sentence. 

¶23 Price contends that the District Court erroneously applied § 

46-18-403(1), MCA, the statute which requires credit for 

incarceration prior to conviction. Price contends that the 

District Court was required to grant him full credit for time 

served on each sentence imposed. Therefore, according to Price, 

not only should his two and ten day misdemeanor jail sentences have 

been deemed served, but he should also have received an eighteen 

day credit against his DUI sentence. 

¶24 The State, on the other hand, contends that the District Court 

correctly interpreted § 46-18-403(1), MCA, when it applied the 

eighteen days of credit once against the total time to be served 

for the three consecutive sentences. The State asserts that 

awarding the full amount of time served toward each sentence, when 

sentences run consecutively rather than concurrently, would lead to 

an absurd result and is inconsistent with the approach uniformly 

taken in other jurisdictions. 

¶25 Section 46-18-403(1), MCA, provides: 

Credit for incarceration prior to conviction. (1) 

Any person incarcerated on a bailable offense and against 
10 

whom a judgment of imprisonment is rendered must be 

allowed credit for each day of incarceration prior to or 

after conviction, except that the time allowed as a 

credit may not exceed the term of the prison sentence 

rendered. 

¶26 Statutory language must be construed according to its plain 

meaning and, if the language is clear and unambiguous, no further 

interpretation is necessary. Clarke v. Massey (1995), 271 Mont. 

412, 416, 897 P.2d 1085, 1088. This Court must attempt to discern 

and give effect to the intention of the Legislature, § 1-2-102, 

MCA; State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 

1333, and construe each statute so as to avoid an absurd result 

"and to give effect to the purpose of the statute." Infinity Ins. 

Co. v. Dodson, 2000 MT 287, ¶ 46, 302 Mont. 209, ¶ 46, 14 P.3d 487, 

¶ 46 (citing Christenot v. State, Dept. of Commerce (1995), 272 

Mont. 396, 401, 901 P.2d 545, 548). 

¶27 We conclude that Price's interpretation is not warranted by 

the plain language of the statute and would result in a fundamental 

unfairness in the administration of criminal sentencing among 

similarly situated defendants. The Hawaii Supreme Court recently 

stated the inherent problem: 

Statutes giving credit for presentence confinement were 

designed to ensure equal treatment of all defendants 

whether or not they are incarcerated prior to conviction. 

 Granting presentence credit, therefore, seeks to place 

an in-custody criminal defendant who cannot afford to 
11 

post bail in the same position as his counterpart with 

bail money. 

Once credit has been granted, no additional purpose 

is served by granting a second or "double credit" against 

a later consecutive sentence. Courts in other 

jurisdictions having similar statutes agree that a 

defendant who receives consecutive sentences is entitled 

to presentence credit only once against the aggregate of 

the consecutive terms, while a defendant sentenced to 

concurrent terms in effect receives credit against each 

sentence. [Citations omitted.] 

State v. Tauiliili (Haw. 2001), 29 P.3d 914, 918. In addition to 

the potential inequity foreseen by the Hawaii court, the statute 

does not provide for repeated application of time served. It 

simply requires that the defendant be credited with time served. 

That is what was done in this case. 

¶28 Price's interpretation of § 46-18-403(1), MCA, would also 

defeat the Legislature's purpose for permitting consecutive 

sentences. See § 46-18-401, MCA. As noted by the Wisconsin 

Supreme Court: 

The state offered in its brief a situation where a 

defendant is charged with multiple misdemeanors. In the 

state's hypothesis, a criminal who is charged with 25 

separate batteries and is in nine months pretrial custody 

and then receives a nine months sentence on each count 

consecutively would be immediately discharged if 

multiple-time credits were to be allowed. While the 

hypothesis cited is an example of logical overkill, we 

consider it sufficiently persuasive to convince us that 

good public policy comports with the meaning we give the 

sentencing-credit statute. 

State v. Boettcher (Wis. 1988), 423 N.W.2d 533, 539. Although in 

this case the defendant had earned only eighteen days of 

presentence credit, it is not unusual that defendants spend six 

months to a year in jail awaiting trial in complex criminal cases. 

 We agree with the logic expressed by the Wisconsin Supreme Court. 
12 

 For the foregoing reasons, we hold that § 46-18-403(1), MCA, 

entitles defendants to credit for presentence incarceration only 

once against the aggregate of all terms imposed when multiple 

sentences are imposed consecutively. 

¶29 Our interpretation of § 46-18-403(1), MCA, is consistent with 

that uniformly followed in other jurisdictions which have 

interpreted similar statutes. See, e.g., State v. Tauiliili (Haw. 

2001), 29 P.3d 914, 918; Blankenship v. State (Md. Ct. Spec. App. 

2000), 763 A.2d 741; State v. Sanchez (Neb. Ct. App. 1994), 520 

N.W.2d 33; State v. Percy (Vt. 1992), 612 A.2d 1119; People v. 

Watts (Mich. Ct. App. 1991), 464 N.W.2d 715; State v. Miranda (N.M. 

1989), 779 P.2d 224; State v. Cuen (Ariz. Ct. App. 1988), 761 P.2d 

160; State v. Riley (Mo. Ct. App. 1988), 761 S.W.2d 745; Nissel v. 

Pierce (Or. 1988), 764 P.2d 224; Endell v. Johnson (Alaska App. 

1987), 738 P.2d 769, 771; State v. Arcand (N.D. 1987), 403 N.W.2d 

23; People v. Pluskis (Ill. App. Ct. 1987), 515 N.E.2d 480; 

Schubert v. People (Colo. 1985), 698 P.2d 788; Effinger v. State 

(Minn. 1986), 380 N.W.2d 483; State v. Decker (N.H. 1985), 503 A.2d 

796; State v. Aaron (N.M. Ct. App. 1985), 703 P.2d 915; State v. 

Jenkins (Kan. Ct. App. 1984), 690 P.2d 396; State v. Cruz-Mata

(Ariz. 1983), 674 P.2d 1368; State v. Hoch (Idaho 1981), 630 P.2d 

143; Simms v. State (Ind. Ct. App. 1981), 421 N.E.2d 698; People v. 

Brown (Cal. Ct. App. 1980), 107 Cal.App.3d 858; Commonwealth v. 

Carter (Mass. App. Ct. 1980), 411 N.E.2d 184; People ex rel. 

Bridges v. Malcolm (N.Y. 1978), 379 N.E.2d 156; State v. Richardson 

(N.C. 1978), 245 S.E.2d 754; Wilson v. State (Wis. 1978), 264 

N.W.2d 234; Cox v. State (Kan. 1974), 522 P.2d 173; Miller v. 
13 

State (Fla. Dist. Ct. App. 1974), 297 So.2d 36; United States ex 

rel. Derengowski v. United States Attorney Gen. (8th Cir. 1972), 457 

F.2d 812; Holland v. State ( Md. Ct. Spec. App. 1971), 284 A.2d 

874; State v. Johnson (Iowa 1969), 167 N.W.2d 696. 

¶30 In this case, Price was entitled to receive "credit for each 

day of incarceration," and the District Court properly awarded 

Price credit for each day served. Of the eighteen days of 

presentence incarceration, twelve days were credited against the 

sentences imposed for the two misdemeanor offenses. The District 

Court then applied the remaining six days of pretrial incarceration 

toward Price's DUI sentence. Therefore, Price was given "credit 

for each day of incarceration" – no more, no less. Accordingly, we 

conclude that the District Court's interpretation of the law 

regarding credit for time served was correct. 

¶31 For the foregoing reasons, we affirm the judgment of the 

District Court. 

/S/ TERRY N. TRIEWEILER 

We Concur: 

/S/ JAMES C. NELSON 
14 

/S/ PATRICIA COTTER 

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART