Canadians Getting a DUI in Montana

As the Canadian economy has improved relative to ours in the U.S., more and more Canadians have been venturing south of the border for vacation and fun. Unfortunately, this can often result in a DUI for our neighbors to the north. And being a Canadian citizen doesn’t protect you from a DUI in the States. But it does add a lot of complexity. Specifically, the legal proceedings surrounding a DUI will require appearances in Court which can be inconvenient or even impossible on the Court’s schedule.

A DUI attorney familiar with the problems faced by Canadian citizens can help minimize the problems you’ll encounter and save yourself a lot of time and problems. The law won’t be any different because you’re a Canadian, but dealing with the practical implications requires experience and forethought.

If you’re a Canadian who has been charged with a DUI in the states, call me today at 406-752-6373 for a free consultation and case review.

Helena Man Found Guilty of 12th DUI

A jury found a 53-year-old Helena man guilty of his 12th driving under the influence offense on Wednesday evening.

After two days of testimony, the 12 members of the jury took about three hours of deliberation.

Charles R. Horton is set to be sentenced for felony DUI on July 28.

Horton, 53, was accused of driving a vehicle into a snow bank while intoxicated in November 2010.

Horton faces a sentence of 13 months to the Montana Department of Corrections followed by up to a five-year suspended sentence.

http://helenair.com/news/article_90e58a9a-97e0-11e0-b54e-001cc4c03286.html

State v. Flynn | MT Supreme Court DUI Case

State v. Flynn is a Montana Supreme Court decisions involving a DUI case. Specifically, the issue for the Court was whether the Deputy had particularized suspicion to stop Flynn’s vehicle. Particularized suspicion is an important concept in Montana DUI law, and something that I have discussed before on here.

A police officer must have a particularized suspicion in order to stop a vehicle in Montana. To show sufficient cause to stop a vehicle, the State must show 1) objective data from which an experienced officer can make certain inferences; and 2) a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was witness to criminal activity.

In Flynn’s case, the Deputy testified that he saw Flynn’s truck cross the fog line three separate times over the course of about .3 miles. The question in the case was whether this justified stopping his vehicle (a stop which resulted in a DUI arrest).

Flynn’s attorney made a number of arguments, one being that under State v. Lafferty, crossing the fog line does not justify a traffic stop. The Montana Supreme Court clarified that Lafferty stated that crossing the fog line was not illegal. But an officer does not need to witness illegal behavior to form a particularized suspicion.

The Court also noted that the particularized suspicion analysis must focus on what the officer knew at the time of the stop – and that he doesn’t need to consider every possible legitimate excuse a driver may have.

With these things in mind, the Court found that the officer did have a sufficient particularized suspicion to initiate the stop.

Call me today at 406-752-6373 to schedule a free consultation to discuss your DUI case.

State v. Baze | MT Supreme Court DUI Case

State v. Baze is a Montana Supreme Court decision on a DUI case and stands for the proposition that a faxed toxicology report containing blood test results was hearsay testimony and could not be admitted under the business records exception found in the Montana Rule of Evidence 803(6).

Recently, I wrote about hearsay evidence in DUI cases in Montana. A brief recap: hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. It is a very broad category covering most things not said in trial. There are many exceptions to hearsay, one being the business records exception at issue in Baze.

At Mr. Baze’s Montana DUI Trial, the State wanted to introduce the results from a blood test performed on Baze on the night in question. But the only copy they had at trial was a fax of the document. The parties agreed that the document was hearsay – it was an out of court statement offered to prove that Baze’s blood alcohol content was higher than the legal limit. They disagreed on whether the report was admissible anyway under the “business records” exception to the hearsay rule.

The Court ruled that the document did not qualify under the business records exception because the rule requires that the entity which created the business record (the toxicology report in this case) must establish that the record was prepared in accordance with its regular and trustworthy business practices. Because no testimony was offered at Mr. Baz’s trial by personnel from the Billings Clinic where the record was generated, it was not admissible.

A good DUI attorney in Montana knows that keeping evidence out is as important as the evidence you get in. Mr. Baze’s attorneys certainly remembered this. If you have questions about what is hearsay in DUI case or questions about your DUI case, please call me today at 406-752-6373 to schedule your free consultation. We can meet in person or simply talk over the phone. Either way its free, so what have you got to lose?

Hearsay in a Montana DUI Trial

Evidence is a funny thing. On the one hand, we want the jury to be able to consider as much information as possible in order to reach the correct conclusion. But after a lot of trial and error, we have discovered that some types of information are more trouble than they are worth. For example, allowing one person to testify about what a second person said could be a problem. Doing it when the second person isn’t going to testify is a serious problem. For that reason, the Montana rules of evidence prohibit Hearsay testimony unless it fits under certain exceptions.

Montana Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” In Montana this could be an oral or written assertion or the nonverbal conduct of a person. Hearsay is not admissible, unless otherwise allowed in the law. Because the definition of hearsay is relatively simple, legal arguments involving hearsay have more to do with the exceptions.

Montana Rule of Evidence 803 contains 24 exceptions and rule 804 contains 5 exceptions. And really, these are better thought of as categories of exceptions instead of individual ones – which means there are a lot of times when something that otherwise qualifies as hearsay evidence is admitted in a Montana DUI trial.

As I’ve discussed before, a good Montana DUI attorney keeps as much evidence out as he introduces. A strong knowledge of the Montana Rules of Evidence is essential to accomplish this – and familiarity with hearsay is vital.

If you have questions about a Montana DUI, or what evidence from the investigation could actually be used against you in Court, please call me today to schedule a free meeting. You can reach me at 752-6373 to schedule your free phone or in person consultation.

What to do After a DUI Arrest in Montana

If you’ve been arrested for a DUI in Montana, here is a list of things that you should do:

If your license was revoked because you refused a test, you should file a Petition for Return of Driver’s License.  In Montana you have 30 days to request the hearing in District Court for the County where you have been charged.

Don’t make assumptions. Just because you were registered at having a BAC over 0.08 doesn’t mean you’ve lost your case.  Let your Montana DUI attorney investigate to make sure that the reading was accurate.

Write everything down you can remember about the incident.

Gather witnesses who can testify about that night. Especially if they can help pin down how much you had to drink and that you were sober.

Do not fail to appear in Court. When you were released, you were given a Court date. Don’t miss it.

Call an attorney. Find one (like myself) who offers a free consultation. At the very least, pick their brain and learn everything you can for an hour. Even if you don’t decide to hire him, you’ll leave the appointment knowing more than you did before.

Failing to become educated and understanding the dangers of a DUI is probably the most important thing to think about.  Most people don’t understand the implications of their DUI arrest.

If you have been charged with DUI in Montana, call me today at 406-752-6373 to schedule a free appointment. Learn everything you can, because I can assure you the Prosecutor has done this before.

Rep. Hale Defends Drunk Driving

I defend the rights of people accused of DUI in Montana not because I think driving drunk is a good thing, but because I believe people accused of any crime are innocent until proven guilty and deserve the constitutional protections of any citizen. Montana State Representative Hale of Basin apparently goes all the way, and believes that drunk driving in Montana is a “way of life” and that tougher DUI laws will destroy that.

While I worry that some of the DUI “reform” currently being considered by the Montana Legislature will result in more convictions of innocent drivers, I do not support drunk driving.

Click here to watch the video of Representative Hale’s speech.

Missoula DUI Attorney

As a Montana DUI Attorney, I serve all of western Montana – representing ordinary people accused of drunk driving or diving while impaired. Because of its size, Missoula is one of the major areas for DUI charges. As one of the largest cities in the state, Missoula has a huge number of DUI arrests and charges each year. Between Missoula Municipal Court, Missoula Justice Court, and Missoula District Court, there are a number of places your DUI charges could be filed. But the same rules apply as they do across the state of Montana regarding which Missoula Court has jurisdiction for the DUI.

Because I specialize in DUI, the location of the Court makes little difference (so long as its within the state of Montana). The faces change, but the law stays the same. In Missoula, Kalispell, Bozeman or Miles City a Montana DUI is a Montana DUI. And the defendants are entitled to the same rights and protections anywhere in the state.

If you have been accused of a DUI in Missoula, please call me for a free consultation. Although my office is in Kalispell, my practice is across western Montana. Call 406-752-6373 to set up a free, no obligation, consultation either over the phone or in person. At those prices, what have you got to lose?

Acknowledgement of Rights in Montana

If you have been accused of Drunk Driving, when you enter a plea to the charges of DUI you will also need to sign an acknowledgement of rights. If you have retained an attorney, you DUI lawyer may be able to file a document with the Court stating that he has explained your rights to you. Those rights come from a combination of the federal constitution, the state constitution, and Montana law.

Although it isn’t an exhaustive list of every right you enjoy as someone accused of a crime in the U.S., it is a pretty good outline of the major ones. For example, as I have talked about numerous times before, the prosecution must prove your guilt beyond a reasonable doubt. YOU ARE PRESUMED TO BE INNOCENT. Too often we just pay that phrase lip service and forget what it really means. But it is the cornerstone of our justice system and something everyone needs to be reminded of.

You also have to the right to appear before a judge or magistrate.

You have the right to remain silent and refuse to testify during any stage of the proceedings. Your silence does nto imply any wrongdoing on your part and cannot be used against you.

You have the right to enter a plea of not guilty and to have a trial by a judge or a jury.

You have the right to a speedy and public trial within six months of your entry of a not guilty plea.

You have the right to confront witnesses called to testify against you,a nd to cross examine those witnesses.

You have the right to present evidence in your defense at trial and to comel the attendance of witnesses with subpoenas issued by the Court.

You have the right to an attorney. If you cannot afford one, you may ask the Court to appoint one for you. A public defender will be appointed if you qualify financially.

The problem with rights are that they need to be protected. Vigilantly. Or else people tend to walk all over them. One of my most important jobs as a DUI defense attorney is to know all the rights my clients have, and be on the constant lookout for anyone trying to violate them.

If you are unsure what rights you have in a DUI case, please call me today to schedule a free meeting to discuss your situation. My number is 406-752-6373 and I am always happy to discuss my favorite topic: protecting the rights of those accused of a crime.

Conditions of Release in a Montana DUI Case

When a Montanan accused of DUI is released from custody before trial, it is common practice to require they pay bail. The money given to the Court for bail is held to encourage the defendant to continue to make all his appearances and not leave the jurisdiction before trial. If he fails to do so, the Court keeps the bail money and a warrant is issued for his arrest.

The same power that allows the Court to set bail, also allows the Court to set certain conditions of release. Some common requirements are:

• that the defendant not change his residence without first notifying the Court;
• that the defendant not change his phone number or mailing address without first notifying the Court;
• that the defendant maintain contact with his attorney;
• that the defendant authorize his attorney to notify the Court if contact has been lost;
• that the defendant remain law abiding in all respects;
• that the defendant not consume alcoholic beverages;
• that the defendant not enter bars, taverns, casinos, or any other establishment where alcoholic beverages are served as a main item of sale;
• that the defendant not have contact with anyone alleged to be a victim of the incident;
• that the defendant submit to continuous alcohol monitoring by means of a secure continuous remote alcohol monitoring system (SCRAM); and
• that the defendant not possess firearms of any type.

These are just a general list of some common limitations. The Court may impose different restrictions on a case by case basis, depending on the specifics of a persons offense. The limitation on firearms is often not imposed for DUI defendants because the nature of their crime doesn’t involve guns. However, for  a DUI case in Montana, you can be virtually sure that one condition will be that you not consume any alcohol during your release, and that you avoid bars. Exceptions can be made for employment purposes – but working in a bar is a tough way to convince the prosecutor that you won’t be tempted by alcohol in the future.

If you have been subjected to release restrictions and have questions about them, please call me today to schedule a free meeting. My number of 406-752-6373 and I would be happy to discuss this or any other issue related to Montana DUI with you.