                              No.    93-332

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1994


CITY OF BILLINGS, MONTANA,
            Plaintiff and Respondent,
     -vs-
GILBERT 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



                                Submitted on Briefs:     June 24, 1994
                                              Decided:   J u l y 26, 1994
Filed:
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
                             c
to Montana Law Week, State Reporter and West Publishing Company.




                                       Chief Justice


We concur:
