COMMONWEALTH vs. PATRICK A. THERRIAULT.

NOLAN, J. The defendant was charged under G. L. c. 90, Section 24G (a), [Note 1] with homicide by motor vehicle while intoxicated.

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He filed a motion to dismiss, alleging that the mandatory sentencing provisions of Section 24G (a) violate Federal and State provisions against cruel and unusual punishment, violate his rights to due process, and offend the doctrine of separation of powers under art. 30 of the Massachusetts Declaration of Rights. The motion was denied. The defendant waived his right to trial by jury and admitted to sufficient facts to warrant a finding of guilty, without surrendering his right to challenge the constitutionality of the sentencing provisions of Section 24G (a). The trial judge found sufficient facts, entered a finding of guilty, and imposed the minimum statutory penalty of imprisonment in a house of correction for one year. Execution of the sentence was stayed pending appeal. We transferred the case from the Appeals Court on our own motion.

The defendant admitted at trial that he had consumed ten beers and a shot of liquor on the day of the accident. He stated to police officers that he and the decedent left the tavern where they had been drinking and drove to a restaurant to eat. After the two left the restaurant, the fatal accident occurred. The defendant stated that he was traveling approximately sixty miles per hour in a forty mile per hour zone. He could not recall all the events of the crash, but did remember colliding with a van. Officers at the scene observed heavy damage to the passenger side of the defendant's vehicle, and called for the fire rescue team. The officer who first approached the vehicle noticed the defendant in the driver's seat, bleeding from the head, and he detected an odor of alcohol emanating from the automobile. Other officers at the scene observed empty beer bottles in and around the defendant's vehicle. Witnesses told police that the defendant was traveling at a high rate of speed and apparently lost control of his vehicle, striking the sidewalk, a snowbank, and another automobile before finally colliding with the van. The defendant was arrested and given his Miranda warnings before being transported to a hospital for treatment. The defendant's passenger was taken to the hospital, where he was pronounced dead.

On appeal, the defendant claims that the statute under which he was convicted and sentenced is unconstitutional. We disagree.

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It should be noted initially that we grant substantial deference to the broad authority of the Legislature to set the duration of imprisonment when prescribing penalties for criminal offenders. Commonwealth v. Morrow, 363 Mass. 601, 610 (1973). We are also mindful that the Legislature has latitude in determining limits on the discretion that the trial judges possess in sentencing convicted criminals. Solem v. Helm, 463 U.S. 277, 290 (1983). Although mandatory minimum jail terms can be criticized for restricting the sentencing options available to a trial judge, this criticism alone is not sufficient to invalidate an act of the Legislature. See Commonwealth v. Jackson, 369 Mass. 904, 910-912 (1976).

The minimum penalty provided under section 24G (a) is a one-year commitment to a house of correction. Under the statute, the sentence "shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this subsection be eligible for probation, parole, or furlough or receive any deduction from his sentence . . . ." [Note 2] We shall address each of the defendant's constitutional challenges to the statute in turn.

1. Cruel and unusual punishment. The defendant contends that the one-year minimum mandatory prison term imposed by Section 24G (a) is so disproportionate to the offense of homicide by motor vehicle while intoxicated that it constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, and art. 26 of the Massachusetts Declaration of Rights. Over a decade ago, this court upheld against an identical challenge the mandatory minimum one-year sentence for the offense of carrying a firearm without a license in violation of G. L. c. 269, Section 10 (a). Commonwealth v. Jackson, supra at 909. In Jackson, we utilized a tripartite test

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for disproportionality, which considered: (i) the nature of the offense and the offender in light of the degree of harm to society; (ii) a comparison of the challenged punishment with other punishments imposed within the State; and (iii) a comparison of the challenged punishment with punishments imposed for the same or similar crimes in other jurisdictions. Id. at 910-913. We use the same analysis today. [Note 3]

We need not embark on a lengthy discussion to pass the sentencing provisions of Section 24G (a) by each prong of the disproportionality test. [Note 4]

The defendant concedes that the first prong of the test is satisfied. Although the defendant may have intended the victim no harm, we must consider the danger inherent in negligently operating a motor vehicle while intoxicated in light of the total and irreversible harm caused to the victim and the threat that such activity poses to society. In enacting Section 24G, the Legislature has demonstrated its unwillingness to tolerate the alarming increase of highway deaths caused by negligent and intoxicated drivers.

The defendant urges, however, that upon comparing the mandatory sentencing provision of Section 24G (a) with punishments

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imposed for other crimes in the Commonwealth and with punishments imposed for the same or similar crimes in other jurisdictions, the statute appears unconstitutionally severe. In support of this argument, the defendant asserts that because mandatory minimum jail sentences are not imposed in the Commonwealth for many serious crimes including armed robbery, G. L. c. 265, Section 17, and rape, G. L. c. 265, Section 22, the one-year minimum term under Section 24G (a) is excessive by comparison. The argument is faulty. Although the above-listed felonies do not prescribe mandatory minimum penalties, each carries a maximum penalty of life imprisonment. When we compare the range of sentences available under each of these crimes with those available under Section 24G (a), the penalties for vehicular homicide while intoxicated are not unconstitutionally disproportionate. Indeed, a more appropriate comparison can be made between the sentence available under Section 24G (a) and those available for similar offenses such as operating to endanger, G. L. c. 90, Section 24 (2) (a), and operating under the influence, G. L. c. 90, Section 24 (1) (a)(1). Both of these crimes allow the imposition of a jail term of up to two years, a maximum penalty only slightly less severe than that prescribed by Section 24G (a).

Nor are we convinced that the mandatory one-year jail term is unconstitutionally disproportionate to the penalties imposed by other States. Although Massachusetts was the first State to subject first offenders convicted of motor vehicle homicide while intoxicated to a nonreducible mandatory prison sentence, the range of possible sentences that a similar offender faces in other jurisdictions is comparable to, if not greater than, those prescribed by Section 24G (a). See, e.g., Alaska Stat. Section 11.41.120 (1983), and Section 12.55.125 (1984 & 1987 Supp.) (manslaughter -- twenty years); Cal. Penal Code Section 191.5 (Deering Supp. 1987) (gross vehicular manslaughter while intoxicated -- four, six or ten years' imprisonment); N.Y. Penal Law Section 125.12 (Consol. Supp. 1986) (vehicular manslaughter, 2d degree -- class D felony -- seven-year prison term maximum).

2. Due process. To succeed in a due process attack on the mandatory minimum one-year sentence the defendant must

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establish that the statute bears no reasonable relation to a permissible legislative objective. Commonwealth v. Jackson, supra at 918. The defendant insists that the sole legislative objective in enacting Section 24 G (a) was to deter drunk driving, and he makes the unsubstantiated claim that a mandatory one-year jail term does not bear a reasonable relation to the accomplishment of that goal. By failing to present any support for his position, however, the defendant does little else than attempt to reopen a debate that has already been settled on the floor of the Legislature. Moreover, the defendant's argument ignores completely that this court has recognized that punishment serves other societal interests including isolation and incapacitation, retribution and moral reinforcement, and reformation. Cepulonis v. Commonwealth, 384 Mass. 495, 499 (1981). Without evidence that the sentencing provisions of Section 24G (a) do not serve the objectives of the Legislature, the defendant has failed to sustain his heavy burden of demonstrating that the statute lacks a rational basis.

3. Separation of powers. The defendant requests that we reconsider our reasoning in Commonwealth v. Jackson, supra at 920-925 (upholding a one-year minimum sentence for carrying an unlicensed firearm), and rule that in the circumstances of the instant case the one-year minimum prison sentence under Section 24G (a) violates the separation of powers doctrine embodied in art. 30 of the Massachusetts Declaration of Rights. We disagree.

The victim in this case lost his life at the hands of the defendant, who recklessly or negligently drove his vehicle while intoxicated. We refuse to read into the Legislature's one-year minimum sentencing mandate "some saving flexibility in favor of a sympathetic defendant enmeshed in the web of a mandatory sentence." Commonwealth v. Lindsey, 396 Mass. 840, 843 (1986).

4. Conclusion. The mandatory minimum sentence provision in Section 24G (a) does not offend the provision against cruel and unusual punishment as expressed in the United States Constitution and the Massachusetts Constitution, or due process principles,

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or provisions for separation of powers under art. 30 of the Massachusetts Declaration of Rights.

Judgment affirmed.