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Driving Under the Influence / DUI

Under Montana law, the prosecutor has two alternative ways of proving DUI. Under § 61-8-401, Montana Code Annotated (MCA), the basis for a DUI charge is evidence that a person’s ability to safely operate a vehicle was diminished by alcohol and/or drugs. Under § 61-8-406 MCA, Montana law also has a "per se" version of DUI that alleges that a person drove with a BAC of .08 or greater. 

DUI penalties for a first conviction can include 24 hours to 6 months in jail and a fine of $600 to $1,000. Penalties increase for a new DUI after a previous conviction. In addition to the court-ordered penalties after a DUI conviction, a person also faces an increase in insurance rates and a criminal record that can last a lifetime.

DUI Attorney in Helena, MT

If you were arrest for driving under the influence of alcohol or drugs in Helena, Montana, or any of the surrounding areas, then contact a criminal defense attorney at Beebe Law Firm. Greg Beebe is experienced in fighting DUI charges including a case involving a breath test, a blood test, or a refusal to submit to testing.

Greg Beebe represents residents in Helena in Lewis and Clark County, Boulder in Jefferson County, Missoula in Missoula County, Bozeman Gallatin County, and other surrounding areas in Montana.

Call today at 1 (406) 442-3625 for a free consultation to discuss your case.

Information Center for Driving Under the Influence in Helena, MT

  •  Types of DUI Charges in Montana
  •  Elements of Montana’s DUI Law
  •  Definitions Used in Montana’s DUI Statutes
  •  Defenses to DUI Charges in Montana

Different Types of DUI Charges in Montana

Under Montana law, the phrase "under the influence" means that as a result of consuming alcohol, drugs, or any combination of alcohol and drugs, a person's ability to safely operate a motor vehicle has been diminished. The definition of driving under the influence is contained in MCJI 10-102(b).

Montana law provides for many different ways that a DUI can be proven including:

  • D.U.I. – Section 61-8-401 MCA - Driving under the influence of alcohol or drugs
  • "Per Se" D.U.I. – Section 61-8-406 MCA – Driving with a BAC of .08 or greater

Although the arresting officer or prosecutor may allege both DUI and Per Se DUI in the alternative on the same complaint or separate complaints, the defendant may only be convicted of one or the other, or neither, but not both offenses.

Under § 61-8-411, MCA, a person can be charged with operating a vehicle with an excessive marijuana concentration under the following circumstances:

  • with blood levels of 5 ng/ml of Delta-9-Tetrahydrocannabinol or more, a driver is presumed to be too impaired to drive safely (effective October 1, 2013);
  • with sufficient evidence of impairment, a person can be convicted of DUI with a THC level below 5 ng/ml.

Operating a vehicle with an excessive marijuana concentration applies to all commercial and non-commercial drivers, including individuals registered as cardholders with Montana’s Marijuana Program.

Aggravated Forms of DUI in Montana

In some cases, a person can be charged with a form of aggravated DUI under § 61-8-465, MCA. Aggravated DUI applies to impaired drivers have a higher risk of reoffending. Aggravated DUI in Montana is subject to greater penalties and punishments. Aggravated DUI may be charged in a variety of circumstances, such as:

  • if a driver has BAC ≥ 0.16%;
  • if the driver is already subject to ignition interlock restrictions;
  • if the driver was driving with a suspended or revoked driver license;
  • if the driver has a prior refusal to provide BAC evidence; or 
  • if the driver has a pending charge or prior DUI/BAC conviction.

Elements of Montana's DUI Law

The burden of proof is on the prosecution, and the prosecution must prove all elements of the offense charged beyond a reasonable doubt. In a DUI case, the prosecution must prove that the defendant:

1. was driving or in actual physical control of a vehicle;

a. upon the ways of this state open to the public while under the influence of alcohol; or

b. within this state while under the influence of drugs or a combination of alcohol and drugs.

2. was under the influence of alcohol, drugs or a combination of alcohol and drugs;

3. within city/county to establish venue and jurisdiction.

It is important to keep in mind, that it is possible for sufficient evidence to exist to prove that a person is driving under the influence of drugs and/or alcohol even if their BAC is below 0.08.

For a Per Se violation of Montana's DUI statute, the prosecution must prove that the defendant:

  1. was driving or in actual physical control of a vehicle;

2. upon the ways of this state open to the public;

3. while the alcohol concentration in the blood, breath or urine was 0.08 or more; and

4. within city/ county to establish venue and jurisdiction.

Definitions used in Montana's DUI Statutes

The phrase "under the influence" is defined to mean that as a result of taking alcohol, drugs, or any combination of alcohol and drugs, a person's ability to safely operate a motor vehicle has been diminished.

The phrase "ways of this state open to the public" means any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public.

The defendant is in actual physical control of a motor vehicle if the accused is not a passenger and is in a position to, and can, operate the vehicle. A motorist does not necessarily relinquish control over a vehicle simply because it is incapable of starting or moving the vehicle.

BAC is determined by the amount of alcohol you drink (more alcohol means higher BAC), how fast you drink (faster drinking means higher BAC), and your weight (a small person does not have to drink as much to reach the same BAC as a heavier person). BAC – The term “BAC” refers to the Blood Alcohol Content. BrAC – The term “BrAC” refers to the Breath Alcohol Content.

The term “UrAC” refers to the Urine Alcohol Urine Alcohol Note: Urine tests can detect the presence of alcohol but does not quantify the amount in a way that can be correlated with Blood or Breath alcohol. Urine and blood tests can be used to detect the presence of drugs.

Defenses to DUI Charges in Montana

For DUI cases in Montana, a criminal defense attorney can raise many defenses depending on the facts. Some of the most commonly asserted defenses are listed below.

  • The officer lacked a legal basis for the initial stop or detention.
    • Under Section 46-5-101 M.C.A., before an officer can conduct a stop or detention of a driver, the officer must have a “particularized suspicion” that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.
    • To show sufficient cause to stop a vehicle, the burden is on the State to show:
      • objective data from which an experienced police officer can make certain inferences; and
      • a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was witness to criminal activity.
    • The essence of the “particularized suspicion” test is that the totality of the circumstances must give law enforcement a particularized and objective basis for suspecting the person of criminal activity. See State v. Reynolds, 272 Mt. 46, 50, 899 P.2d540, 544-43 (1995). Without such a showing, all evidence from the stop might be suppressed resulting in a dismissal of the charges.
  •  The officer did not read Miranda warnings before taking the DUI suspect into custody and conducting an interrogation.
    • In some cases, any statements taken in violation of the U.S. Supreme Court’s decision in Miranda can be suppressed or excluded at trial.
    • After the arrest for DUI, the defendant must be advised of the Miranda rights before any questions may be asked or an interview conducted about the offense. Pennsylvania v. Muniz, 16 S. Ct. 2638 (1990).
    • Additionally, if the defendant asks to talk to an attorney, the law enforcement officer may not conduct an interview without the presence of a lawyer. State v. Johnson, 719 P.2d 1248 (Mt. 1986).
  •  The officer did not have probable cause to arrest the defendant for DUI.
    • An arrest of the Defendant, without a Warrant, is authorized by Section 46-6-311(1), MCA, when: the officer has probable cause to believe that the driver is committing an offense or the officer has probable cause to believe that the driver has committed an offense and existing circumstances require an immediate arrest. Section 46–6–311(1), MCA.
    • Probable cause to arrest can be established, if the facts and circumstances within an officer’s personal knowledge or related to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that someone is committing or has committed an offense.
    • One of the “existing circumstances” referred to in § 46–6–311(1), MCA, is “concern for the safety of the offender or the public.” Muller v. State, 2012 MT 66, ¶ 14, 364 Mont. 328, 274 P.3d 737 (internal quotations omitted).
    • “The probable cause determination must be based on an assessment of all relevant circumstances, evaluated in light of the knowledge of a trained law enforcement officer.” City of Missoula v. Iosefo, 2014 MT 209, ¶ 10, 376 Mont. 161, 330 P.3d 1180 (quoting Williamson, ¶ 21) (internal quotations omitted).
  •  The offense did not occur on a “way of the state open to the public.”
    • Under Section 61-8-101(1) MCA, The Montana Supreme Court decided that the phrase “ways of the state open to the public” can include certain types of private parking facilities such as those outside a hotel or business.
  • The officer did not comply with Montana’s Implied Consent Law for an Alcohol Concentration (AC) Test.
    • Under Montana’s implied consent law, any person who operates or is in actual physical control of a vehicle is deemed to have given consent to a test of blood or breath to determine any measured amount or detected presence of alcohol or drugs in the body.
    • In most cases, the defendant does not have the right to speak to an attorney before deciding whether to submit to an alcohol concentration test. Insisting on talking to a lawyer before deciding whether to take the alcohol concentration test can be considered a refusal in some circumstances.
  •  The officer violated the defendant’s due process right to an independent Blood Test.
    • Although the officer decides whether blood or breath test will be administered, the defendant may obtain a second independent BAC blood test at his/her expense even if there is a refusal to take an officer requested a test. State v. Swanson, 722 P.3d 1155 (Mt. 1986).
    • The refusing to take the test requested by the officer, however, might still be considered a refusal under the “Implied Consent Law.” State v. Christopherson, 705 P.2d 121 (Mt. 1985).
    • The officer may not unreasonably impede defendant’s rights to a test. If a defendant claims he was denied an independent blood test, he must show the following:
      • that he made a timely request for an independent test; and
      • that a law enforcement officer unreasonably impeded his right to obtain the test. 

Drugged DUI Cases in Montana

Many DUI prosecutions involve the use of drugs instead of alcohol. For any Drugged DUI cases in Helena, Montana, your criminal defense attorney should be experienced with fighting allegations of driving impairment caused by drugs other than alcohol.

To defense you against an allegation of drugged DUI, your attorney should be familiar with the investigative techniques used by Drug Recognition Experts (DREs) to determine whether a person is under the influence of drugs other than alcohol. Your DUI defense should understand how DRE investigators attempt to present the information to the judge and jury. Your attorney should also be familiar with the limitations of horizontal gaze nystagmus testing as an accurate way to detect drug use. 

Additional Resources

Montana's DUI Penalties – Visit Montana's Department of Transportation website to read more about the penalties and fines that are associated with driving under the influence charges and how to get your driving privileges reinstated after a DUI administrative or court-ordered suspension or revocation. Also find information about training for DUI enforcement officers and prosecutors in Montana provided during a multi-day training session during a course called “Prosecuting the DUI” which was held on April 19-21, 2011 at the Montana Law Enforcement Academy in Helena.

Underage Drinking– Visit the official website of the Montana government to read more about the dangers of underage drinking and how parents can prevent their kids from abusing alcohol. Learn more about the penalties and punishments for operating a vehicle by a person under the age fo 21 with an alcohol concentration of .02 or more.

Finding a DUI Attorney in Helena, MT

If you were arrested for a DUI in Montana, you should discuss your case with an experienced Montana criminal defense attorney. Greg Beebe at Beebe Law Firm is prepared to assist you, whether this is your first DUI, second DUI, or third or subsequent DUI charge. His familiarity with the courts and the resources available for people accused of driving under the influence may help you avoid the most serious criminal penalties and keep you out of jail.

Greg Beebe is also experienced fighting DUI cases involving a refusal to submit to breath testing. If a person refuses to submit to the breath test, then the officer can seize your driver's license and trigger a six (6) month suspension that begins immediately. After a refusal, you will not be eligible for a probationary driver's license during the suspension. An attorney can help you fight to avoid those consequences immediately after the arrest.

Beebe Law Firm represents clients in Montana who have been charged with DUI. Greg Beebe will fight and defend anyone in the State of Montana and residents in Lewis and Clark County, Missoula County, Gallatin County or other Montana communities.

His office is conveniently located at 1085 Helena Avenue in Helena, Montana, between Idaho Avenue and North Dakota Avenue. Give him a call today to discuss your case either on the phone or in the office. 

This article was last updated on Friday, August 25, 2017.


Beebe Law Firm - Criminal and DUI Defense
110 N Warren St Helena, MT 59601