Burden of Proof in Montana DUI

Both the Montana and federal constitutions apply when a person is charged with Driving Under the Influence. Just like in any other criminal prosecution, the state must prove all elements of the offense beyond a reasonable doubt. In a DUI case, this means that the prosecution must prove that the defendant:

  1. was driving or in actual physical control of a vehicle;
  2. was upon the “ways of this state open to the public” while under the influence of alcohol, drugs, or a combination of those two;
  3. was within a specific city/county to establish venue and jurisdiction.

These elements must be proven by admissible evidence. In a Montana DUI charge, a videotape of the defendant at the time of the offense or soon after, even if no Miranda warnings were given, is admissible. However, a proper foundation needs to be established before its admission. A proper foundation requires:

  • a showing that the recording device was capable of making a record;
  • a showing that the operator was competent;
  • establishment of the authenticity and correctness of the recording;
  • a showing that changes, additions, or deletions were not made;
  • a showing of the manner of preservation of the record;
  • identification of persons recorded; and
  • a showing of the voluntariness of the statements to be introduced.

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