No. 83-402 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsARLENE MAE BRUNS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anthony F. Keast argued, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kimberly A. Kradolfer argued, Asst.2,Atty. General 

Robert L. Deschamps, County Attorney: Missoula, 

Iton tana 

Submitted: September 12, 1984 

Decided: November 20, 1984 

Clerk 
Mr. Justice Fred J. WeSer delivered the Opinion of the Court: 

Defendant Arlene M. Bruns was convicted in a non.jury 

trial in Nissoula County District Court on three counts of 

driving under the influence (DUI) and one count of driving 

while her license was suspended. She was sentenced to 1 year 

in the county jail with 2 months suspended on each DUI count 

and 30 days for driving while her license was suspended. The 

court ordered all sentences to be served concurrently. 

Defendant appeals the judgment. We affirm. 

Defend-ant raises the following issues: 

1. Is defendant's 10-month county jail sentence cruel 

and unusual punishment or a denial of equal protection because it is not proportional to the offenses committed compared with sentences served in the state prison? 

2. Whether requiring time to be served in the county 

jail is unconstitutional because conditions at the jail 

constitute cruel and unusual punishment? 

3. Is the mandatory minimum jail sentence for DUI 

convictions invalid as a violation of the separatibn of 

powers between the judicial and legislative branches? 

4. Is the DUI statute unconstitutionally vague? 

On October 25, 1982 defendant was driving northbound on 

Highway 93 south of Mhssoula at Carlton Creek Road when she 

crossed the left turn lane and the center line and struck the 

front of a vehicle. The car which was struck had stopped 

part way into the intersection while several horses were 

being driven across the highway from the Carlton Creek Road. 

Southbound traffic had slowed for the horses to cross, and 

visibility was good from both directions. Defendant explained at trial that she had been drinking and had become 

"disoriented" and "wasn't in control." Defendant was arrested for DUI. 
On December 1, 1982 deputy sheriff Steven Peterson 

stopped defendant for speeding. She was driving 68 m.p.h. in 

a. 45 m.p.h. speed zone. The officer smelled alcohol on her 

breath, noted her slurred and confused speech, and arrested 

her for driving under the influence and driving while her 

license was suspended. The breathalyzer test taken at the 

that time indicated a blood-alcohol level of 0.129 percent. 

On January 10, 1983 defendant was apprehended near the 

Bonner exit after she had driven 14 miles eastbound in the 

westbound lane of Interstate 90. Officer Jerry Rogers of the 

Montana Highway Patrol detected a strong odor of alcohol and 

had to assist defendant to keep her from falling. Defendant 

was arrested for DUI. 

Defendant was charged with four separate offenses: 

three counts of driving under the influence (DUI) and one 

count of driving while her license was suspended. All of the 

DUI counts were filed in District Court as "high misdemeanors" because defendant had been convicted of DUI twice within 

the previous 5-year period. The charge of driving while her 

license was suspended was filed with them. The four charges 

were consolidated for trial and a nonjury trial was held on 

June 10, 1983. Defendant was convicted on all four charges. 

After ordering, receiving and considering a presentence 

report, the court conducted a sentencing hea.ring. The prosecutor recommended one year with six months suspended on each 

DUI conviction, 30 days on the conviction driving while 

license was suspended and imposition of conditions during the 

suspension period. Defense counsel argued against incarceration and for alcoholism treatment. The defendant made a 

statement to the court claiming to be aware of her drinking 

problem, claiming to be on her way to reformation, and informing the court she had successfully completed an alcohol 

treatment program at St. Patrick's Hospital in Missoula. 
Based upon defendant's extensive record of driving under 

the influence and her dangerousness, the District Court 

imposed a stiffer sentence than recommended by the prosecutor: one year in the Missoula County Jail with 2 months 

suspended on each DUI count, 30 days on the charge of driving 

while her license was suspended and various conditions of 

suspension. The court ordered that the sentences run 

concurrently. 

3 

Is defendant's 10-month county jail sentence cruel and 

unusual punishment or a denial of equal protection because it 

is not proportionate to the offenses committed compared with 

sentences served in the state prison? 

Defendant raises several arguments in challenge to the 

length of her sentence. She first argues that her sentence 

is greater than would actually be served by a state prison 

inmate for a more serious offense because county jail inmates 

are not entitled to statutory good time allowance or parole 

eligibility as state prison inmates are. She contends that 

her sentence is therefore unconstitutionally disproportionate 

to the offenses committed. We disagree. 

A sentence which falls within the maximum authorized by 

statute is not cruel and unusual punishment. State v. 

Karathanos (1972), 158 Mont. 461, 468-69, 493 P.2d 326, 330. 

However, if the sentence is so greatly disproportionate to 

the crime that it shocks the conscience and outrages the 

moral sense of the community or of justice, it is nonetheless 

cruel and unusual punishment. Matter of Jones (1978), 176 

Mont. 412, 420, 578 P.2d 1150, 1154. Defendant has the 

burden of proving her sentence is within the exception. - Jd. 

The nature of crimes committed by defendant is a weighty 

factor in this analysis. The United States Supreme Court 

recently expressed its outrage at the crime of drunk driving 
and the "carnage caused by drunk drivers." South Dakota v. 

Neville (1983), 459 U.S. 553, 558, 103 S.Ct. 916, 920, 74 

L.Ed.2d. 748, 755; see also Burg v. Municipal Court (1983), 

198 Cal.Rptr. 145, 146-47, 673 P.2d 732, 734. These courts 

have recognized that drunk drivers have cut a wide swath of 

death and destruction nationwide. We note that Montana has 

also suffered the effects of this national tragedy. 

The Defendant's driving history is also particularly 

significant. Defendant has an extensive record of DUI convictions and license revocations or suspensions for refusal 

to take a breath test. She has demonstrated that she is a 

hazard to the people of Montana. This was a key factor in 

the length of sentence imposed by the District Court. The 

court listened to the testimony, considered the presentence 

report, and considered defendant's claim that she had completed an alcohol treatment plan and was on her way to reform. The court obviously was not convinced that defendant 

was no longer a danger to the public. The presentence report 

showed that defendant had previously completed several alcohol treatment programs but nonetheless continued to drive 

drunk. The court concluded that protection of the public 

required incarceration of defendant. 

The trial court is vested with wide discretion in fixing 

punishment. Karathanos, 158 Mont. at 469, 493 P.2d at 330. 

Further, " ' [p] ersistence in crime and failure of earlier 

discipline effectively to deter or reform justify more drastic treatment . . . . I II State v. Maldonado (1978), 176 Mont. 

322, 330, 578 P.2d 296, 301, quoting Pennsylvania ex rel. 

Sullivan v. Ashe (1937), 302 U.S. 51, 54-55, 58 S.Ct. 59, 61, 

82 L.Ed. 43, 46. The District Court did not abuse its discretion in imposing a 10-month sentence, particularly in 

light of the fact that the court could have imposed on defen- 
dant a jail sentence of more than 3 years by requiring the 

sentences to be served consecutively. 

Under these circumstances, defendant's 10-month sentence 

does not shock the conscience or outrage the moral sense of 

the community or justice. The fact that defendant, as a 

county jail inmate, is not entitled to good time or parole 

does not alter this conclusion. It is within the province of 

the legislature to distinguish between criminal offenses and 

to establish punishments. See Gore v. United States (1958), 

357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405, 

1410-11. It is also within the legislature's province to 

determine matters related to sentencing, such as application 

of statutory good time and parole benefits. 

We hold that defendant's 10-month jail sentence does not 

shock the conscience or outrage the moral sense of the community or justice, and does not constitute cruel and unusual 

punishment. 

Defendant also suggests that denial of good time and 

parole eligibility to county jail inmates is a denial of 

equal protection. We disagree. 

The legislature is free to discriminate on a rational 

basis in treatment of different classes of criminal offenders, so long as such different treatment is not based upon 

any impermissible classification such as race, sex or religion. See Maldonado, 176 Mont. at 328-29, 578 P.2d at 300; 

McGinnis v. Royster (1973), 410 U.S. 263, 269-78, 93 S.Ct. 

1055, 1059-63, 35 L.Ed.2d 282, 288-93. The good time and 

parole eligibility rules have been devised to rationally 

address the special problems of rehabilitation and management 

of a large prison population. These benefits are not selectively endowed on the basis of any impermissible classification. Their denial to all DUI offenders, who are statutorily 
required to serve their time in the county jail, section 

61-8-714, MCA, does not violate the equal protection clause. 

In a related argument, defendant contends that section 

53-24-303(2), MCA requires that she be given alcohol treatment rather than criminal punishment. However, her argument 

is clearly unfounded in light of Solberg v. County of 

Yellowstone (Mont. 1983), 659 P.2d 290, 40 St.Rep. 308. 

Section 53-24-303(2), MCA provides for treatment of persons 

incapacitated by alcohol. In Solberg this Court distinguished persons "whose only fault is an affinity for alcohol" 

from those arrested for DUI. This Court stated that section 

53-24-303(2), MCA is not intended to protect those who have 

committed criminal acts. Solberg, 659 P.2d at 293, 40 

St.Rep. at 312. While treatment of alcoholism is desirable, 

it is not, as appellant argues, required instead of criminal 

punishment for one convicted of DUI. 

Defendant also argues in this regard that her sentence 

violates the Montana Constitution in failing to provide for 

her rehabilitation. 

Montana's Constitution, art. 11, section 28, requires 

laws for punishment of crime to be founded on the principles 

of prevention and reformation. Defendant's sentence furthers 

the prevention principle through incarceration -- defendant 

is prevented from drunk driving during the 10 months of her 

incarceration and presumably discouraged from further drunk 

driving by the prospect of more incarceration if she repeats 

the offense. Appellant's sentence addresses the reformation 

principle through ordering her to attend counseling as required by the probation office, ordering her to abstain from 

the use of alcohol, and providing avoidance of further incarceration as an incentive to reform. This constitutional 

requirement has been satisfied here. 
Defendant has shown no abuse of discretion or 

constitutional violation with respect to her 10-month county 

jail sentence. 

I1 

Defendant raises 3 additional issues which we decline to 

address for the following reasons. 

Defendant argues that imprisonment in the Missoula 

County Jail is cruel and unusual punishment because of the 

conditions allegedly existing there. This issue was not 

raised in the District Court. This Court will not review 

matters raised for the first time on appeal. State v. 

Trangsrud (Mont. 1982), 651 P.2d 37, 40, 39 St.Rep. 1765, 

1768. Further, the record contains absolutely no evidence 

regarding conditions existing at the Missoula County Jail. 

"Appeals can only be taken on the record made, not on the 

record which should have been made." State v. Totterdell 

(1959) , 135 Mont. 56, 61, 336 P. 2d 696, 699. In the absence 

of any record regarding conditions at the Missoula County 

Jail, we will not rule on whether confinement therein constitutes cruel and unusual punishment. 

Defendant argues that the mandatory minimum jail sentence for DUI convictions is invalid as a violation of the 

separation of powers between the judicial and ,-egislative 

branches. However, this statutory provision was not applied 

to defendant, whose sentence far exceeds the mandatory minimum. She therefore lacks standing to challenge this provision. We have previously declined to address alleged 

constitutional violations where the statute complained of was 

not applied to the complainant. In State v. Goodwin (Mont. 

1984), 679 P.2d 231, 41 St.Rep. 508, this Court declined to 

address two alleged constitutional errors because the appellant was not subjected to the errors he complained of. One 

of the errors alleged by Goodwin concerned exceptions to 
mandatory minimum sentences. 679 P.2d at 235, 41 St.Rep. at 

513. Similarly, defendant here has not been affected by the 

constitutional infirmity she alleges and we will not address 

this issue. 

Finally, defendant contends that the DUI statute is 

unconstitutionally vague because the presumption of intoxication at 0.10% blood-alcohol level fails to provide an acceptable means of knowing when drinking and driving becomes 

criminal. 

The State correctly notes that defendant did not raise 

this issue at the trial court level. This Court will not 

review a matter raised for the first time on appeal. 

Tranqsrud, supra. Further, a review of the transcript shows 

that the State did not rely upon blood-alcohol level to 

convict defendant. A breath test was taken in only one of 

the three DUI arrests at issue. In all three cases, the 

defendant's behavior, breath odor and other characteristics 

of intoxication were proven at trial. Defendant herself 

testified that when she was arrested for the DUI charge where 

a breath test was taken, she had been drinking and was disoriented. Thus, the statute complained of was not applied to 

defendant and this Court will not address this issue. 

Goodwin, supra. 

The District Court's judgment is affirmed. 

We concur: 

Chief Justice 

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