DUI LawsGet help from a Montana DUI Lawyer by using the drop-down
menu below
or by calling 1-800-852-8005.
 |
Select the county where your arrest occurred: |
If you have been charged with a Montana DUI there are two things that you need to consider: 1) Take the charge seriously. 2) Hire an experienced Montana DUI Lawyer. The Montana DUI Defense Lawyers at DUILaws.com offer an initial review of your case. Your inquiry is both free and confidential. To begin fighting your Montana DUI, use the drop-down menu above to locate a Montana Attorney in your county. But do it now, as time is very critical in a Montana DUI case. |
Montana DUI Laws
Driving under influence of alcohol or drugs
-- definitions. (1) It is unlawful and punishable, as provided in
61-8-442, 61-8-714, and 61-8-731 through 61-8-734, for a person who is
under the influence of:
(a) alcohol to drive or be in actual
physical control of a vehicle upon the ways of this state open to the
public;(b) a dangerous drug to drive or be in actual physical control of a vehicle within this state;
(c) any other drug to drive or be in actual physical control of a vehicle within this state; or
(d) alcohol and any dangerous or other drug to drive or be in actual physical control of a vehicle within this state.
(2) The fact that any person charged with a violation of subsection (1) is or has been entitled to use alcohol or a drug under the laws of this state does not constitute a defense against any charge of violating subsection (1).
(3) (a) "Under the influence" means that as a result of taking into the body alcohol, drugs, or any combination of alcohol and drugs, a person's ability to safely operate a vehicle has been diminished.
(b) Subject to 61-8-440, as used in this part, "vehicle" has the meaning provided in 61-1-101, except that the term does not include a bicycle.
(4) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person at the time of a test, as shown by analysis of a sample of the person's blood or breath drawn or taken within a reasonable time after the alleged act, gives rise to the following inferences:
(a) If there was at that time an alcohol concentration of 0.04 or less, it may be inferred that the person was not under the influence of alcohol.
(b) 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 person 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 person.
(c) If there was at that time an alcohol concentration of 0.08 or more, it may be inferred that the person was under the influence of alcohol. The inference is rebuttable.
(5) The provisions of subsection (4) do not limit the introduction of any other competent evidence bearing upon the issue of whether the person was under the influence of alcohol, drugs, or a combination of alcohol and drugs.
(6) Each municipality in this state is given authority to enact 61-8-406, 61-8-408, 61-8-410, 61-8-714, 61-8-722, 61-8-731 through 61-8-734, and subsections (1) through (5) of this section, with the word "state" in 61-8-406 and subsection (1) of this section changed to read "municipality", as an ordinance and is given jurisdiction of the enforcement of the ordinance and of the imposition of the fines and penalties provided in the ordinance.
(7) Absolute liability as provided in 45-2-104 will be imposed for a violation of this section.
61-8-402. Blood or breath tests for alcohol, drugs, or both. (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a test or tests of the person's blood or breath for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person's body.
(2) (a) The test or tests must be administered at the direction of a peace officer when:
(i) the officer has reasonable grounds to believe that the person has been driving or has been 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 of the two and the person has been placed under arrest for a violation of 61-8-401;
(ii) the person is under the age of 21 and has been placed under arrest for a violation of 61-8-410; or
(iii) the officer has probable cause to believe that the person was driving or in actual physical control of a vehicle:
(A) in violation of 61-8-401 and the person has been involved in a motor vehicle accident or collision resulting in property damage; or
(B) involved in a motor vehicle accident or collision resulting in serious bodily injury, as defined in 45-2-101, or death.
(b) The arresting or investigating officer may designate which test or tests are administered.
(3) A person who is unconscious or who is otherwise in a condition rendering the person incapable of refusal is considered not to have withdrawn the consent provided by subsection (1).
(4) If an arrested person refuses to submit to one or more tests requested and designated by the officer as provided in subsection (2), the refused test or tests may not be given, but the officer shall, on behalf of the department, immediately seize the person's driver's license. The peace officer shall immediately forward the license to the department, along with a report certified under penalty of law stating which of the conditions set forth in subsection (2)(a) provides the basis for the testing request and confirming that the person refused to submit to one or more tests requested and designated by the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (6).
(5) Upon seizure of a driver's license, the peace officer shall issue, on behalf of the department, a temporary driving permit, which is effective 12 hours after issuance and is valid for 5 days following the date of issuance, and shall provide the driver with written notice of the license suspension and the right to a hearing provided in 61-8-403.
(6) (a) Except as provided in subsection (6)(b), the following suspension periods are applicable upon refusal to submit to one or more tests:
(i) upon a first refusal, a suspension of 6 months with no provision for a restricted probationary license;
(ii) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the
department, a suspension of 1 year with no provision for a restricted probationary license.
(b) If a person who refuses to submit to one or more tests under this section is the holder of a commercial driver's license, in addition to any action taken against the driver's noncommercial driving privileges, the department shall:
(i) upon a first refusal, suspend the person's commercial driver's license for a 1-year period; and
(ii) upon a second or subsequent refusal, suspend the person's commercial driver's license for life, subject to department rules adopted to implement federal rules allowing for license reinstatement, if the person is otherwise eligible, upon completion of a minimum suspension period of 10 years. If the person has a prior conviction of a major offense listed in 61-8-802(2) arising from a separate incident, the conviction has the same effect as a previous testing refusal for purposes of this subsection (6)(b).
(7) A nonresident driver's license seized under this section must be sent by the department to the licensing authority of the nonresident's home state with a report of the nonresident's refusal to submit to one or more tests.
(8) The department may recognize the seizure of a license of a tribal member by a peace officer acting under the authority of a tribal government or an order issued by a tribal court suspending, revoking, or reinstating a license or adjudicating a license seizure if the actions are conducted pursuant to tribal law or regulation requiring alcohol or drug testing of motor vehicle operators and the conduct giving rise to the actions occurred within the exterior boundaries of a federally recognized Indian reservation in this state. Action by the department under this subsection is not reviewable under 61-8-403.
(9) A suspension under this section is subject to review as provided in this part.
(10) This section does not apply to blood and breath tests, samples, and analyses used for purposes of medical treatment or care of an injured motorist or related to a lawful seizure for a suspected violation of an offense not in this part.
History: En. Sec. 1, Ch. 131, L. 1971; R.C.M. 1947, 32-2142.1; amd. Sec. 1, Ch. 103, L. 1981; amd. Sec. 1, Ch. 602, L. 1983; amd. Sec. 3, Ch. 659, L. 1983; amd. Sec. 8, Ch. 698, L. 1983; amd. Sec. 3, Ch. 99, L. 1985; amd. Sec. 1, Ch. 503, L. 1985; amd. Sec. 2, Ch. 789, L. 1991; amd. Sec. 1, Ch. 564, L. 1993; amd. Sec. 1, Ch. 444, L. 1995; amd. Sec. 6, Ch. 447, L. 1995; amd. Sec. 3, Ch. 88, L. 1997; amd. Sec. 1, Ch. 287, L. 1999; amd. Sec. 1, Ch. 213, L. 2003; amd. Sec. 13, Ch. 428, L. 2003; amd. Sec. 8, Ch. 556, L. 2003.
61-8-410.
Operation of vehicle by person under
twenty-one with alcohol concentration of 0.02 or more.
(1) It is unlawful for a person under the age of 21 who has an alcohol concentration of 0.02 or more to drive or be in actual physical control of a vehicle upon ways of this state open to the public. Absolute liability, as provided for in 45-2-104, is imposed for a violation of this section.
(2) Upon a first conviction under this section, a person shall be punished by a fine of not less than $100 or more than $500.
(3) Upon a second conviction under this section, a person shall be punished by a fine of not less than $200 or more than $500 and, if the person is 18 years of age or older, by incarceration for not more than 10 days.
(4) Upon a third or subsequent conviction under this section, a person shall be punished by a fine of not less than $300 or more than $500 and, if the person is 18 years of age or older, by incarceration for not less than 24 consecutive hours or more than 60 days.
(5) In addition to the punishment provided in this section, regardless of disposition:
(a) the person shall comply with the chemical dependency education course and chemical dependency treatment provisions in 61-8-732 as ordered by the court; and
(b) the department shall suspend the person's driver's license for 90 days upon the first conviction, 6 months upon the second conviction, and 1 year upon the third or subsequent conviction. A restricted or probationary driver's license may not be issued during the suspension period until the person has paid a license reinstatement fee in accordance with 61-2-107 and, if the person was under the age of 18 at the time of the offense, has completed at least 30 days of the suspension period.
(6) A conviction under this section may not be counted as a prior conviction under 61-8-401 or 61-8-406.
History: En. Sec. 2, Ch. 447, L. 1995; amd. Sec. 1, Ch. 520, L. 1997; amd. Sec. 2, Ch. 455, L. 1999.
61-8-440.
Ignition interlock device -- assisting in
starting and operating -- circumventing -- penalty.
(1) It is unlawful for a person who is subject to a restriction
under 61-8-442 to operate a motor vehicle not equipped with an ignition
interlock device.(2) A person may not knowingly assist a person who is restricted to the use of an ignition interlock device to start and operate the restricted person's vehicle.
(3) A person may not knowingly circumvent the operation of an ignition interlock device.
(4) A person convicted of a violation of this section shall be punished by a fine of not more than $500 or by imprisonment for not more than 6 months or both.
(5) This section does not apply if:
(a) the starting of a motor vehicle or the request to start a motor vehicle equipped with an ignition interlock device is done for the purpose of safety or mechanical repair of the device or the vehicle; and
(b) the person subject to the restriction does not operate the vehicle.
History: En. Sec. 2, Ch. 107, L. 1997.
61-8-441. Department rules regarding ignition interlock devices -- ignition interlock device provider requirements. (1) The department shall adopt rules providing for the approval of ignition interlock devices and the installation, calibration, repair, and removal of approved devices.
(2) The department's rules must be based upon federal standards issued for similar devices.
(3) An ignition interlock device that is approved by the department must also:
(a) be designed so it does not impede safe operation of the vehicle;
(b) correlate well with the level established for alcohol impairment;
(c) work accurately and reliably in an unsupervised environment and under extreme weather conditions;
(d) require a deep lung breath sample or use an equally accurate measure of blood alcohol concentration equivalence;
(e) resist tampering and show evidence of tampering if it is attempted;
(f) be difficult to circumvent;
(g) minimize inconvenience of a sober user;
(h) operate reliably over the range of automobile environments and in connection with various manufacturing standards; and
(i) be manufactured by a person who is adequately insured for product liability.
(4) An ignition interlock device provider shall include in any lease agreement for an ignition interlock device a warning that a person who knowingly tampers with, circumvents, or otherwise misuses the device is subject to criminal prosecution.
History: En. Sec. 3, Ch. 107, L. 1997; amd. Sec. 2, Ch. 547, L. 2005.
61-8-442.
Driving under influence of alcohol or drugs
-- driving with excessive alcohol concentration -- ignition interlock
device.
(2) If a person is convicted of a second
or subsequent violation of 61-8-401 or 61-8-406, in addition to the
punishments provided in 61-8-714 and 61-8-722, regardless of
disposition, the court shall order that each motor vehicle owned by the
person at the time of the offense be either: (1) In addition to the punishments
provided in 61-8-714 and 61-8-722, regardless of disposition and if a
probationary license is recommended by the court, the court may, for a
person convicted of a first offense under 61-8-401 or 61-8-406,
restrict the person to driving only a motor vehicle equipped with a
functioning ignition interlock device during the probationary period
and require the person to pay the reasonable cost of leasing,
installing, and maintaining the device.
(a) seized and subjected to the forfeiture procedure provided under 61-8-421; or
(b) during the 12-month period beginning with the end of the period of driver's license revocation, equipped with a functioning
ignition interlock device and require the person to pay the reasonable cost of leasing, installing, and maintaining the device.
(3) Any restriction imposed under this section must be included in a report of the conviction made by the court to the department in accordance with 61-11-101 and placed upon the person's driving record maintained by the department in accordance with 61-11-102.
(4) The duration of a restriction imposed under this section must be monitored by the department.
History: En. Sec. 8, Ch. 107, L. 1997; amd. Sec. 3, Ch. 258, L. 1999; amd. Sec. 4, Ch. 300, L. 2003; amd. Sec. 5, Ch. 329, L. 2003; amd. Sec. 3, Ch. 547, L. 2005; amd. Sec. 117, Ch. 596, L. 2005.
61-8-460.
Unlawful possession of open alcoholic
beverage container in motor vehicle on highway.
(1) Except as provided in subsection (2), a person commits the offense of unlawful possession of an open alcoholic beverage container in a motor vehicle if the person knowingly possesses an open alcoholic beverage container within the passenger area of a motor vehicle on a highway.
(2) This section does not apply to an open alcoholic beverage container:
(a) in a locked glove compartment or storage compartment;
(b) in a motor vehicle trunk or luggage compartment or in a truck bed or cargo compartment;
(c) behind the last upright seat of a motor vehicle that is not equipped with a trunk;
(d) in a closed container in the area of a motor vehicle that is not equipped with a trunk and that is not normally occupied by the driver or a passenger; or
(e) in the immediate possession of a passenger:
(i) of a motor vehicle, including a bus, taxi, or limousine, that is used for the transportation of persons for compensation and that includes the provision of a hired driver; or
(ii) in the living quarters of a camper, travel trailer, or motor home.
(3) (a) A person convicted of the offense of unlawful possession of an open alcoholic beverage container in a motor vehicle shall be fined an amount not to exceed $100.
(b) A violation of this section is not a criminal offense within the meaning of 3-1-317, 3-1-318, 45-2-101, 46-18-236, 61-8-104, and 61-8-711 and may not be recorded or charged against a driver's record, and an insurance company may not hold a violation of this section against the insured or increase premiums because of the violation. The surcharges provided for in 3-1-317, 3-1-318, and 46-18-236 may not be imposed for a violation of this section.
History: En. Sec. 1, Ch. 348, L. 2005.
