Gallatin County, MT

Driving under the influence is simple: Driving or being in actual physical control of a motor vehicle while the ability to safely operate the vehicle has been impaired by the consumption of alcohol. The jury instructions break it down as:

1: A person commits the offense of driving under the influence of alcohol if, while under the influence of alcohol, a person drives a vehicle upon the ways of this state open to the public.

2: "Under the influence of alcohol" means that, as a result of taking alcohol into the body, a person's ability to safely operate a motor vehicle has been diminished.

Exhibiting signs of impairment while operating the vehicle, during roadside physical maneuvers, and/or through chemical tests may establish sufficient reason for law enforcement to make an arrest and charge a person with DUI. DUI penalties depend on the age of the driver and the type of offense suspected.

Law Enforcement in Gallatin County has a zero tolerance approach to impaired driving. If they have reasonable grounds to believe that someone is under the influence of alcohol, drugs, or a combination of both, they will arrest the person. You will be taken to the Gallatin County Detention Center and you will be asked to submit to a breath test, or a blood test. It is the officer’s choice what tests to administer.

In Montana, you may be arrested and charged for driving under the influence if you are impaired and/or your blood alcohol content (BAC) is over .08%. You can be charged with DUI under 61-8-401 MCA or with DUI per se under 61-8-406 MCA. If tests reveal the presence of drugs in your system in a blood test, you may be charged with a DUI-Drugs offense. If you drive a commercial vehicle, the BAC limit is .04%.

The primary difference is in a presumption -- which you have a right to challenge -- as raised by your BAC. If you are over .08%, you are presumed to be impaired. While you can attempt to disprove this presumption research by the National Highway Traffic and Safety Administration (NHTSA) has established that this level of alcohol affects your divided attention ability, your reaction times, and your level of control behind the wheel.

61-8-410 established a Zero Tolerance level, a Juvenile or Mini DUI. It is illegal for those under 21 to consume or possess alcohol. This statute establishes a zero tolerance level for under-age drivers. If found behind the wheel of a motor vehicle, underage drivers who drink any amount of alcohol run a high change of being charged with this offense.

If stopped, and an officer suspects the driver of being underage and of consuming alcohol, the driver will be asked to submit to a chemical test of your breath with a Portable Breath Test unit. You may refuse this test, but your driver’s license will be suspended for six months, and if you have refused in the past 5 years, your license will be revoked for one year.

Officers have other tests they can use to determine whether you are impaired. You may be charged under 61-8-410, or you may be charged under 61-8-401 if the officer has reason to believe that you are impaired and not just operating a motor vehicle while under 21 after consuming alcohol.

If you have a driver’s license, you have given your implied consent to a chemical test of your blood, breath or urine for the purpose of estimating alcohol concentration upon the request of a peace officer. If you refuse a lawful request for a breath or blood test (urine is rarely tested), and you have your license with you, it will be seized and forwarded to the Department of Motor Vehicles, along with an Implied Consent Refusal Certification form. This form documents that you refused one or more of the requested tests. You will receive a copy of this form, which may or may not indicate that it is also your Temporary Driver’s License.

By the way, the fact that you don’t have your license at the time does not prevent the officer from submitting the form and DMV from taking action (changed order and some wording)

If issued, the Temporary Driver’s License is valid beginning 12 hours after it was issued, and for the following five days. It expires at midnight on the fifth day. You must carry this Temporary Driver’s License with you.

When the DMV receives the consent refusal certification, it will suspend your driver’s license – 6 months for a first refusal within 5 years and 1 year for a second refusal within 5 years. You cannot be given a restricted license during this period.

You may challenge the suspension of the license by filing a petition within 30 days of notice, with the District Court in the county where you were arrested. Depending upon the practice in that jurisdiction, the petition must be served on the County or City Attorney. Ask the Court Clerk’s office or call the prosecuting attorney’s office for the DUI charge.

whether the peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs or a combination, (the person is under 21 years of age) and the person was placed under arrest for violation of 61-8-401 (61-8-410); whether the officer had probable cause to believe the person was driving or in actual physical control of a vehicle; and whether the person refused to submit to one or more requested tests.

When the petition is filed, the petitioner may request that the action of suspension be stayed or returned to the petitioner until the matter has been decided at the hearing. This doesn’t happen automatically. The judge only issues an order upon request of the petitioner.

The DUI is a criminal charge and involves arrest, booking at a jail, and appearance on the charge in court. Most DUI charges are misdemeanors and are handled in the city, municipal or justice court in the county where you are arrested. The court depends on which agency arrested you. If it is a Highway Patrol or County Sheriff, your citation will go through a justice court and the prosecutor will likely be in the County Attorney’s Office. If you are arrested by a City Police Officer, your citation will likely go through a city or municipal court and the prosecutor will be in the City Attorney’s Office.

In a jury trial on the criminal charge, the jury is instructed as follows relative to the refusal. Be sure to read the blue, itallicized section:

You are instructed that any person who operates a vehicle upon the ways of this state open to the public shall be deemed to have given his/her consent to a chemical test of his/her blood, breath, or urine for the purpose of determining the alcoholic content of his/her blood if arrested by a peace officer for driving or being in actual physical control of a vehicle while under the influence of alcohol. The arresting officer may designate which one of the aforesaid tests shall be administered. In determining the defendant's guilt or innocence, you may consider proof of the defendant's refusal to submit to such a test along with the other competent evidence in the case. The defendant has the right to refuse the test.

A refusal may be used against you. A jury has the right to consider a refusal in the same way that we might view running from law enforcement officers as evidence of guilt.

The refusal, itself, is currently a civil matter between you and DMV. Your license will be acted on according to rules maintained by DMV – you may lose your privelege to drive in this and other states. So, if you get a DUI in Wyoming or elsewhere in the U.S., that state will tell Montana and Montana will take the action dictated under Montana law.

If you aren’t licensed in Montana and you get a DUI, Montana will report a conviction to your home state and they will take action. But, regardless of what your home state does, you will not be allowed to drive in Montana.

3^rd or subsequent offense: a fine of not less than $300 or more than $500 and, if 18 or over, by incarceration for not less than 24 consecutive hours or more than 60 days.

For all offenses, in addition to the above: comply with a chemical dependency education course and chemical dependency treatment provisions of 61-8-732 as ordered by the Court. DMV shall suspend the license for 90 days for a 1^st offense; 6 months for a 2^nd offense; and 1 year for a 3^rd or subsequent offense. A restricted or probationary license may not be issued during the suspension period until the person has paid a reinstatement fee and if under 18, has completed 30 days of the suspension period.

2^nd offense: not less than 7 days (48 hours must be served consecutively and 1^st 5 days may not be suspended) and not more than 6 months; not less than $600 or more than $1000.

For all offenses: The jail time may be suspended for 1 year pending successful completion of a chemical dependency treatment program. All persons must complete a chemical dependency education and treatment program as specified under 61-8-732. DMV will take an action on the driver’s license/privilege to drive under 61-5-208 for 6 months for a 1^st offense; 1 year for a 2^nd or subsequent offense within 5 years. No probationary license will be issued for a 2^nd or subsequent offense during the 1 year period. You may attempt to obtain a probationary license for a 1^st offense by paying the reinstatement fee of $200 and may be required to obtain an ignition interlock device before a probationary license will be issued.

Placement with the Department of Corrections for a term of 13 months. Residential alcohol treatment (WATCH Program) program for 6 months and balance may be done on probation. May be sentenced to 5 years with Department of Corrections or Montana State Prison, suspended pending completion of the 13 months, and consecutive to the 13 months; and fine of not less than $1000 or more than $10,000.

Most courts require that a person convicted of a DUI pay the costs of incarceration, the costs of the chemical treatment, and other costs, including the costs of a trial, if the person is able to pay. The also require that the person not consume alcohol or go where alcohol is served. If an ignition interlock is authorized or ordered, the person may drive only if they have the interlock installed on their vehicle and cannot operate any vehicle not so equipped. The cost of the interlock is the responsibility of the person convicted.

At the header to this web page you'll find an attached PDF file showing what you might expect for sentencing for a DUI. You'll need Acrobat Reader to open the file.

The costs of drinking and driving are high. The out-of-pocket expense for a first offense conviction will stay with an DUI offender for several years after a conviction. The DMV will list all DUI convictions on your driving record for 10 years after the date of your arrest.

Designate A Driver. Before you go to a party or a out for the evening, designate someone in your group who will only stick to non-alcoholic beverages and drive everyone else home safely. Your judgment is the first thing to go once you start to drink, so don't wait until you get to the party. If everyone in your group wants to drink, call a taxicab to take you to the party or bar and have a taxi bring you home. The fare is a real bargain compared to the dangers and costs of drinking and driving.

The information contained on this Website is not to be considered legal advice, nor is it necessarily complete. Your best source of information is the Montana Code Annotated and the case law developed by the Supreme Court. References have been made to state law where appropriate. This is intended only to provide general information.