The Importance of a Good DUI Lawyer in Montana

In State v. Gieser, the Montana Supreme Court recently reversed conviction on charges of DUI based on ineffective assistance of counsel. But this case is really about how important it is to get professional representation in a DUI case. Many lawyers view DUI cases in Montana as basic, and the type of thing that anyone can handle. So many without experience or expertise take a dip. Sometimes, their clients pay the price.

Here, Gieser’s attorney made a number of critical mistakes. First, she failed to object to testimony regarding the HGN test (the test where an object is moved horizontally in front of your eyes). Well established Montana law clearly states that the results of such a test require a showing that the test was properly administered by the officer along with expert testimony demonstrating a scientific basis for the reliability of the results. The prosecution failed to present expert testimony, and Gieser’s attorney failed to object.

Then, Gieser’s attorney did not object to evidence of his Blood Alcohol Content which was determined by an out-of-certification Portable Breath Test apparatus. Montana has strict requirements for the maintenance and certification of PBT machines. The fact that this one was uncertified would have meant that the results were inadmissible. Instead, the jury relied on its results as though they were scientifically accurate and possibly convicted him based on faulty data.

The importance of a qualified DUI lawyer can’t be emphasized enough. These are serious, criminal charges, and need to be dealt with by someone who knows the law. Talking to an attorney is good, talking to an attorney who specializes in DUI defense is better.

Traffic Violation Not Necessary for Montana DUI Investigatory Stop

In State v. Weer, recently decided by the Montana Supreme Court, Mr. Weer appealed the District Court’s decision to not reinstate his driver’s license. As we’ve discussed before, refusal to submit to a preliminary breath test in Montana results in the automatic suspension of your driver’s license. This is based on the Montana implied consent statute which says that a person driving in Montana has impliedly consented to give a breath test. A person who has had their license revoked under this statute can challenge the revocation in District Court, but they are limited to proving that the arresting officer did not have sufficient particularized suspicion to request the breath test.

In Weer’s case, a highway patrolman following him observed his vehicle swerve twice toward the centerline and then cross the centerline. At that point he initiated a stop based on suspicion of DUI, during which Weer refused to submit to the officer’s request for a preliminary breathalyzer test.

Weer challenged the revocation, claiming that the officer did not have sufficient particularized suspicion to initiate an investigative stop and conduct a DUI investigation. The District Court ruled against him after conducting an investigatory hearing.

The Montana Supreme Court reiterated the requirement that “to justify an investigatory stop of a motor vehicle, the State has the burden to show: (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting particularized suspicion that the occupant of the motor vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.” Also, the Court noted that “the question is not whether any one of [the petitioner’s] driving aberrations was itself ‘illegal’ but rather, whether [the officer] could point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.”

Because this is a totality of the circumstances test, it does not matter whether the officer can point to one specific infraction. In this appeal, Weer argued that crossing on to the centerline was not a violation, therefore the officer lacked particularized suspicion. The Supreme Court agreed with the District Court and found that it is irrelevant whether Weer committed a specific traffic violation.

The take home lesson from Weer: even if you have committed no traffic violations, an officer may still initiate a traffic stop and require you to give a preliminary breath test.

DUI Evidence at Trial

When a person is pulled over and the officer conducts a DUI investigation, he is looking for one main thing: evidence that you are impaired by alcohol or drugs. But, the officer has a number of disadvantages regarding the accuracy of his investigation.

The first is that he is unaware of what your normal faculties are. If you’ve had a knee injury, for instance, doing a heel-to-toe walking test may be difficult for you. Likewise, when standing on one foot for a long period of time any number of medical reasons may cause you to sway or lose your balance. These do not reflect on your degree of intoxication or impairment.

There are a number of ways that police try to collect proof against a driver suspected of DUI in Montana. One is by asking about alcohol consumption. An officer could ask, for instance, if you have been drinking and if so, how much. Another aspect the officer will evaluate is your performance on field sobriety tests, where you are asked to complete several physical activities (and follow instructions) to see how well you are able to complete the task. The officer will evaluate your performance on these tests, although his or her perception is highly subjective, and may be colored by the fact that he already suspects you are intoxicated.

Perhaps the most important test the officer will ask you to submit to is a breathalyzer. Although there is evidence to suggest that these machines are not nearly as accurate as police claim they are, the results are still admissible in court.

In addition to these tests, the officer is also watching for other signs of intoxication like bloodshot eyes for example. But as anyone with allergies or contacts can tell you, drinking isn’t the only way to get red eyes.

The bottom line is that while an officer is watching for certain things during a DUI investigation, many of these factors can be caused by completely innocent facts that the officer is not aware of. If you have been wrongly accused of driving under the influence of alcohol or drugs in Montana, please call me today at (406) 752-6373 for a free consultation.

SCRAM Bracelet

SCRAM stands for Secure Continuous Remote Alcohol Monitor. It continuously monitors your sweat for the presence of alcohol to see if you’ve been drinking. When it detects alcohol, it notifies authorities that you are in violation. In Montana, it can be used to help monitor repeat DUI offenders. But, because the science it relies on is fallible, there should be limits to its use.

Montana is one of 46 states using SCRAM technology. The SCRAM bracelet has become a typical part of DUI Court treatment programs, like the Kalispell Municipal DUI Court. The cost of using the bracelet is put on the offender, but often keeps them out of jail. Nationwide, the cost ranges from $12-$15 per day.

But the technology used by SCRAM bracelets is not perfect, and should not be relied on as the sole evidence used to send someone to jail. As a tool to encourage sobriety, and help Court monitor a defendants treatment, the bracelet can be beneficial to everyone involved.

Montana DUI Per Se

A traditional DUI is the operation of a motor vehicle while impaired by alcohol or drugs. This is a relatively subjective assessment with no bright line rule. Determining whether you are “impaired” requires an assessment of your skills that is difficult to make and even harder to prove. The results of Field Sobriety Tests are used to make an assessment of a person’s skills. But the results of the tests are subjective and can be argued about. This makes the state’s job tougher when trying to convict citizen’s accused of DUI. In response to this, a DUI per se was created.

A per se violation is based on a legal assumption. The DUI law in Montana assumes that if your blood alcohol level is at .08 or above, you are too impaired to safely operate a vehicle. It makes no difference whether you are actually impaired, it only matters what level of alcohol is present in your blood according to a test. A Montana DUI per se is a strict liability offense. The state does not need to prove that you were a danger behind the wheel, only what your B.A.C. was at the time.

Proving B.A.C. generally comes down to the result of a breath or blood test administered by a police officer. As I’ve discussed on here before, these results can be skewed by any number of factors, and despite what they would have you believe on TV: are not always accurate. This is why discussing your situation with a Montana DUI attorney is so important, especially one with experience. A per se violation is very difficult to defend unless your attorney is familiar with the technical requirements of Field Sobriety Tests, Particularized Suspicion, and Breathalyzers.

DUI Drugs in Montana

Montana DUI law prohibits operating a vehicle “under the influence of alcohol or drugs.” While we usually think of a DUI as involving alcohol, in Montana it could also be drugs (even if you have a prescription). Any substance that impairs your ability to safely operate a vehicle can lead to a charge of Driving Under the Influence. Montana law specifically states that a prescription for a drug is not a defense to DUI. Obviously, a combination of alcohol and drugs can also lead to DUI charges.

Obviously, charges and conviction for DUI Drugs involve a slightly different process than when the charges simply involve alcohol. While a breathalyzer can supposedly detect the amount of alcohol in a person’s blood, it does nothing for narcotics. Instead, a blood test is required to establish the amount of a drug in a person’s system.

Likewise, police officer’s often rely on the “smell” of alcohol on a person’s breath to establish the probable cause necessary to extend a traffic stop. Prescription drugs give off no odor, so the officers have to rely on other indicators to establish a reasonable suspicion. These indicators are often subtle and very subjective, giving your attorney grounds for challenges at trial.

Charges for DUI drugs are complicated and technical. As with all criminal charges, it is a good idea to obtain legal guidance specific to your situation. If you have been accused of Driving Under the Influence of Drugs in Montana, I offer a free consultation to discuss your situation. Please call today to schedule an appointment.

Prescription not a defense.

Appealing DUI License Suspension

Under Montana DUI law, if you refuse to submit to an alcohol concentration test, your license is automatically suspended. A defendant whose license is suspended or revoked, may appeal to the district court in the county where the alleged DUI occurred. The appeal must be filed within 30 days of the revocation.

At the hearing for the appeal, the district court considers a number of issues:

1) did the peace officer have “reasonable grounds” to believe the Defendant was Driving Under the Influence;

2) was the person under the age of 21 and placed under arrest for a violation of 61-8-410;

3) did the officer have probable cause to believe the person was Driving Under the Influence and involved in an accident resulting in property damage, personal injury, or death; and

4) did the defendant refuse to submit to a test designated by the officer.

At the time of the request for the test, the officer must carefully inform the defendant of the consequences of a refusal. A person’s first refusal will result in a suspension of six months. A second or subsequent refusal within five years of the previous refusal will result in a revocation of one year.

If your license is suspended for an implied consent refusal, you may not obtain a restricted or probationary license.

In your license has been suspended in the Kalispell or Flathead area, contact me today for a free case review. And remember, you only have 30 days to appeal the suspension.

Montana DUI Preliminary Screening Tests

If an officer has stopped you (because he had a particularized suspicion) he will then watch for any indications that you are under the influence of alcohol or drugs. Assuming that there are some indications, the officer will then perform a Preliminary Screening Test. These tests come in a number of different formats, and carry a different amount of weight in making a determination of whether to perform an arrest for DUI.

We’ve discussed Montana field sobriety tests before. These are one of the preliminary screening tests that officers use to determine whether you have been driving under the influence of alcohol or drugs. A videotape of the tests is admissible even if no Miranda Warnings have been given. And successfully performing the field sobriety test does not mean you can’t still be arrested for DUI. Montana courts have ruled that the tests are not required to establish probable cause for an arrest and that probable cause may still be established with other evidence.

The horizontal gaze nystagmus (HGN) test is really a field sobriety test, but common enough to warrant its own discussion. This is when an officer holds something in front of your face and moves it left and right asking you to follow it with your eyes. The officer is trained to watch the way your eyes move to determine whether you are impaired by alcohol. Although it seems simple enough, properly administering the HGN test requires a great deal of specialized knowledge, and before the results of one can be admitted into court, the evidence must show that the arresting officer was properly trained to administer the test and that he was administering it in accordance with that training.

The Preliminary Breath Test (PBT) is a portable breathalyzer that officers use at the scene of a traffic stop to establish probable cause for DUI arrest in Montana. If the officer has a particularized suspicion that a driver has consumed alcohol, Montana law allows him to request a PBT. The law is similar to the implied consent law, in that a refusal to take the PBT may result in the suspension or revocation of the driver’s license or privilege to drive. However, the results of these tests are not substantive evidence of the amount of alcohol present in a person’s body. They just provide an estimate of alcohol concentration for the purpose of establishing probable cause.

Flathead County Sheriff’s Official Charged With DUI

The Daily Interlake had this story involving a Flathead County Sheriff charged with DUI:

Flathead County Sheriff’s Corporal Bruce Parish was ticketed and released by the Kalispell Police Department after a report that a transient had been run over at the VFW on First Street West.

Parish registered a blood-alcohol level of .165 — more than twice the legal limit — according to documents obtained through Kalispell Municipal Court.

Parish unsuccessfully challenged Meehan in the Republican primary campaign in 2006 for sheriff/coroner.

Parish was a law enforcement specialist in the U.S. Air Force and said during the campaign that he has nearly 25 years of experience.

He was hired as a patrol officer with the Sheriff’s Office in 1991. From 1992 to 1996, he worked on the SWAT team and later led it. He was assigned to the detectives division in 1999 and was placed in charge of that department in 2002.

Meehan said Parish is currently second in command of the patrol division.

The Preliminary Breath Test in Montana

When a driver suspected of DUI is stopped in Montana, the officer will determine whether there is a particularized suspicion to believe that the driver is intoxicated. If the driver has such a suspicion, he may ask the driver to submit to a preliminary alcohol screening test (PAST). This is what is commonly called the breath test, or “blowing.”

By driving on the roads of the state of Montana, you have consented to such a test. Under Montana statute 61-8-409(1) “a person who operates or is in actual physical control of a vehicle upon ways of ths state open to the public is considered to have given consent to a preliminary alcohol screening test of the person’s breath.”

Of course, you can refuse the test – but doing so results in the suspension of your license for up to a year. But, you can request a hearing to challenge the suspension where the court will examine whether the officer legitimately had a particularized suspicion that you were driving while under the influence of alcohol. The court will also examine whether you actually refused to submit to the test.

The Montana Supreme Court has ruled that only a particularized suspicion that the driver was under the influence of alcohol, and does not need the higher standard of probable cause. State v. Toth, 317 Mont. 55 (2003).

Also, evidence from this test are not substantive evidence of the amount of alcohol present in a person’s body. Instead, it is just an estimate of alcohol concentration for the purpose of establishing probable cause to believe that person is under the influence of alcohol prior to making an arrest. State v. Strizich, 286 Mont. 1 (1997).