Per Se DUI

Operating a motor vehicle with an alcohol concentration in excess of 0.08 in violation of § 61–8–406(1)(a), MCA, is known as the DUI “per se” statute. Section 61–8–406(1)(a), MCA, the DUI “per se” statute, prohibits a person from driving or being in control of a noncommercial motor vehicle on a public roadway while having an alcohol concentration of 0.08 or higher.

In Montana, the legal limit for a commercial vehicle operator is a BAC of 0.04. The BAC threshold for persons under age 21 is 0.02. The term “Alcohol Concentration” means either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

Greg Beebe represents clients who have submitted to a DUI breath test or a blood test to determine its alcohol concentration. He represents clients charged with the “per se” versions of DUI throughout Helena, Montana, and all of Lewis and Clark County. He also represents clients in Boulder in Jefferson County and the surroundings areas.

Call (406) 442-3300 today for a free consultation to discuss your case.

Retrograde Extrapolation Evidence in Montana DUI Cases

Section 61–8–401(4), MCA, the DUI statute, provides that the concentration of alcohol from a test “taken within a reasonable time after the alleged act” gives rise to certain evidentiary inferences at trial.

The Courts in Montana have noted, “[t]he DUI statute therefore explicitly allows for law enforcement to determine a person’s alcohol concentration a reasonable time after the alleged act, while the DUI Per Se statute refers only to a person’s alcohol concentration while they are driving.” State v. McGowan, 2006 MT 163, ¶ 10, 332 Mont. 490, 139 P.3d 841.

Nonetheless, in McGowan, the court interpreted the DUI “per se” statute “to allow for the admissibility of … tests administered within a reasonable amount of time after the alleged act of driving while under the influence….” This holding made it unnecessary to “prove evidence of a person’s alcohol concentration at the time that they were driving through retrograde extrapolation evidence.” Id.

“Retrograde extrapolation represents the technique through which experts estimate alcohol concentration at some earlier time based on the test results at some later time.” McGowan. Therefore, the courts in Montana apply the requirement of taking an alcohol concentration test “within a reasonable time,” § 61–8–401(4), MCA, to DUI “per se” prosecutions. See State v. Hala, 2015 MT 300, ¶ 11, 381 Mont. 278, 281, 358 P.3d 917, 919–20 (October 20, 2015).

Operation of Noncommercial Vehicle by Person with Alcohol Concentration of .08 or More

A person commits the offense of operating a noncommercial vehicle with an alcohol concentration of 0.08 or more if he [drives] [is in actual physical control of] a noncommercial vehicle upon the ways of this state open to the public while the alcohol concentration in his/her [blood] [breath] [urine] is 0.08 or more.

Under MCA § 61-8-406(1)(a), to convict the Defendant of the offense of operating a noncommercial vehicle with an alcohol concentration of 0.08 or more, the state must prove the following elements:

1. That the Defendant was [driving] [in actual physical control of] a noncommercial vehicle; and
2. The crime occurred upon the ways of this state open to the public; and
3. That the alcohol concentration in the driver’s [blood] [breath] [urine] was 0.08 or more.

Under MCA § 61-8-406(1)(a), the statute defining this offense provides that it is an absolute liability offense thereby negating the necessity of proving a particular mental state, even though jail time is a possibility upon conviction.

Inferences in Driving Under the Influence Cases in Montana

The concentration of alcohol in the Defendant, as shown by analysis of a sample of his/her blood or breath drawn or taken within a reasonable time after the alleged act of driving under the influence of alcohol gives rise to the following inferences:

1. If there was at that time an alcohol concentration of 0.04 or less, it may be inferred that the Defendant was not under the influence of alcohol.
2. If there was at that time an alcohol concentration in excess of 0.04 but less than 0.08 that fact may not give rise to any inference that the Defendant was or was not under the influence of alcohol, but the fact may be considered with other competent evidence in determining the guilt or innocence of the Defendant.
3. If there was at that time an alcohol concentration of 0..08 or more, you are permitted, but not required to infer that the Defendant was under the influence of alcohol. It is your exclusive province to determine whether the facts and circumstances shown by the evidence warrant the inference to be drawn by you.

The jury instructions for inference in Driving Under the Influence Cases in Montana can be found at MCJI 10-102(c).