Eureka MT DUI Lawyer

If you’ve been charged with DUI or Drunk Driving in Eureka, Montana, you need quality legal representation. Although my office is in Kalispell, I represent clients in Eureka City Court, Lincoln County Justice Court, and Lincoln County District Court on a flat-feeLincoln County DUI Lawyer.. Sometimes, a fresh voice helps when you need someone to fight for you. DUI charges in Eureka may be heard in Eureka City Court or Lincoln County Justice Court which is now located in Libby, Montana. If you’ve been arrested and charged with Driving Under the Influence, the name of the court may be the last thing on your mind. If you’re not sure where your case is pending, that’s ok. Call me for a free case review and we can generally figure it out. If not, a few phone calls will resolve the issue quickly.

Legal representation throughout the process is vital to protecting your rights when charged with any crime. It is especially important in DUIs which include stiff and long-lasting penalties such as license suspension and mandatory alcohol counseling. Also, remember that no matter where you’re charged with a DUI the laws in Montana remain the same. The escalating penalties for multiple DUIs are the same in City Court as they are in Justice Court. And if you have accumulated four or more lifetime DUIs, you are probably facing felony charges in Lincoln County District Court with a minimum sentence of one year.

Hiring a DUI Defense Lawyer is an important decision that can have long lasting consequences. Even a first offense can include a $1,000 fine, up to six months in jail, and a six-month license suspension. That’s why hiring the best DUI lawyer available is important and worth the investment. In order to help, I offer a free case review for clients in Lincoln county and am happy to arrange to do it over the phone to avoid unnecessary travel.

State v. Giacomini

A Billings Police Officer observed Giacomini driving the wrong-way on a one-way street and initiated a traffic stop. The Officer testified that he noticed Giacomini had watery, blood-shot eyes and smelled of alcohol so he conducted a series of Field Sobriety Tests which indicated impairment. When asked to take a preliminary breath test, Giacomini refused – so he was arrested and taken to Yellowstone County Detention Facility for further testing.

At the detention facility, Giacomini again failed the field sobriety tests and a search showed he had previously refused a breath test in 1990. Based on those factors, the officer applied for and obtained a search warrant for a sample of Giacomini’s blood. Although he was apparently uncooperative, a blood sample was taken and produced a BAC of 0.12. Giacomini was charged with DUI under Mont. Code Ann. § 61-8-401(1)(a) in Municipal Court.

Giacomini filed a motion to suppress the results of the blood test arguing that the draw violated the Montana Constitution and was not supported by probable cause. The Municipal Court denied the motion on the basis that the officer did not violate Giacomini’s constitutional right of privacy and acted pursuant to a valid search warrant. Approximately a month later, Giacomini filed a motion entitled “Request for Hearing” and asked the Municipal Court to reconsider the suppression issue because the video of the blood draw showed that Mr. Giacomini was “continually stuck” with needles. That motion was denied as untimely. Giacomini pled nolo contendere, reserving the suppression issues for appeal. The District Court affirmed the Municipal Court’s rulings.

On Appeal to the Montana Supreme Court, Giacomini challenged the legality of the blood draw and the Municipal Court’s denial of his motion to reconsider as untimely. The Supreme Court found that the warrant was supported by probable cause and did not violate his constitutional right to privacy. It also found that the Municipal Court did not err by denying his motion as untimely.

In challenging the warrant, Giacomini argued that his prior refusal of a breath test was insufficient to establish probable cause to support a warrant to draw his blood. The Montana Supreme Court disagreed, finding that the warrant was supported by a number of different facts: 1) he had driven the wrong way down the road; 2) he had watery and bloodshot eyes; 3) he smelled of alcohol; 4) he swayed and staggered; and 5) he performed poorly on the field sobriety tests.

Giacomini also cited to Missouri v. McNeely, a U.S. Supreme Court decision which held that the natural dissipation of alcohol from the bloodstream does not constitute a per-se exigent circumstance justifying a warrantless blood draw in a DUI investigation. Giacomini applied this to his situation, arguing that if dissipation is insufficient for exigent circumstances, it is insufficient for probable cause. The Montana Supreme Court ruled that the probable cause determination was not based solely on alcohol dissipation, included considerable other evidence, and the case did not involve a warrantless blood draw based on exigent circumstances so McNeely did not apply.

The Supreme Court declined to address Giacomini’s constitutional challenge to the blood draw.

Finally, the Supreme Court upheld the Municipal Court’s decision that the Request for hearing was untimely. The Court believed that it was essentially a second motion to suppress, and found that it should have been raised before the omnibus hearing. Because it was filed approximately three months after that date, it was untimely.

Date Rape Drugs and DUI in Montana

In general, criminal acts require two separate elements: 1) intention; and 2) action. Commiting an action against your will, or involuntarily, is usually not criminal. In Montana, this is codified at Section 45-2-202, MCA, which provides:

A material element of every offense is a voluntary act, which includes an omission to perform a duty that the law imposes on the offender and that the offender is physically capable of performing, except for deliberate homicide under 45–5–102(1)(b) for which there must be a voluntary act only as to the underlying felony. Possession is a voluntary act if the offender knowingly procured or received the thing possessed or was aware of the offender’s control of the thing for a sufficient time to have been able to terminate control.

For most criminal offenses, it is a defense that the act was done involuntarily, such as during a seizure. However, there is a class of offenses where this doesn’t apply. Absolute liability offenses require no showing of intent. In Montana, DUI is an absolute liability offense. Section 61-8-401(7) (“Absolute liability … will be imposed for a violation of this section.”). This means that it is no defense to a charge of DUI that you didn’t intend to drive drunk.

At least mostly.

In City of Missoula v. Paffhausen, the Montana Supreme Court examined the defense of automatism for the first time. Paffhausen argued that she had been given a date rape drug that caused her impairment.
Date Rape Drug and DUIPaffhuasen acknowledged that DUI is an absolute liability offense, and that she met two of the three elements of DUI: on a public street and impaired. However, she maintained, the date rape drug prevented her from voluntarily driving or being in actual physical control.The City filed a motion to prevent her from using the defense, arguing that it can only be asserted when a defendant’s mental state constitutes an element of the charged offense. Since DUI is absolute liability, the defense should not be available. The city court agreed and Paffhausen appealed all the way to the Montana Supreme Court.

After evaluating past Montana DUI caselaw in State v. Leprowse, the Montana Supreme Court held that absolute liability does not necessarily mean absolute liability. It found that allowing the automatism defense would meet certain other policies embodied in the Montana Code. The majority concluded that Paffhausen was entitled to raise automatism as an affirmative defense based on her claim of being subjected to a date rape drug. In order to prove her automatism defense, the Court went on, she will need to prove by admissible evidence that she did not act voluntarily when she drove her vehicle. Once she offers admissible evidence to this effect, it will be the State’s burden to prove (beyond a reasonable doubt) that she did act voluntarily.

City of Missoula v. Paffhausen, 2012 MT 265

Probable Cause Determinations in MT DUI

In State v. Haller (2013 MT 199), Dwayne Haller challenged the procedure which lead to his conviction for felony DUI. He argued that he was entitled to a preliminary examination within 48 hours of his arrest. Because a preliminary examination was not held within 48 hours of his arrest, Haller believed, the State had to prove that the time that it took for him to receive a probable cause determination was reasonable. The Montana Supreme Court disagreed, and held that he was conflating the two procedures that require a finding of probable cause. The Court provided the following analysis:

Section 46–6–311(1), MCA, provides that “[a] peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.” To ensure that the officer correctly determined that there was probable cause to make the arrest, the Fourth Amendment gives a criminal defendant who has been arrested without a warrant the right to a prompt probable cause determination by a neutral and detached magistrate. Gerstein v. Pugh, 420 U.S. 103, 124–25 (1975).

Section 46–11–110, MCA, also gives a defendant a right to a judicial determination of probable cause before the prosecution can be commenced in justice court. A sworn affidavit submitted with a complaint is a proper basis for the probable cause determination required by the Fourth Amendment. State v. Brown, 1999 MT 339, ¶ 15, 297 Mont. 427, 993 P.2d 672.

Following all arrests, an initial appearance must be conducted before the nearest and most accessible judge without unnecessary delay. Section 46–7–101, MCA (emphasis added). The Montana Supreme Court has noted that this statute, together with the requirement to inform defendants of their rights set out in § 46–7–102, MCA, is designed to “ensure that a criminal prosecution begins promptly and with a recognition of the defendant’s essential rights.” State v. Strong, 2010 MT 163, ¶ 11, 357 Mont. 114, 236 P.3d 580. In addition, before leave to file an information in district court can be granted, a separate determination of probable cause must be made.

There are three different procedures by which the State can obtain the requisite probable cause determination before filing charges in district court: 1) a preliminary examination; 2) direct application to the district court for leave to file an information; or 3) indictment by a grand jury.1 Section 46–10–105, MCA. The State may utilize whatever process it wishes; a defendant is not entitled to any specific procedure. State v. Farnsworth, 240 Mont. 328, 332, 783 P.2d 1365, 1368 (1989). Montana has adopted a flexible standard that requires the district court determination to be made within “a reasonable time” after the defendant’s initial appearance. State v. Higley, 190 Mont. 412, 419, 621 P.2d 1043, 1048 (1980); see also § 46–10–105, MCA.


DUI and Citizen Informants in Montana

Often, DUI arrests are the result of citizen informants making calls to 911 which the officers rely on and make a traffic stop. Under the laws of Montana, an officer does not need to see illegal activity himself. The officer can rely on an informant’s statement that has sufficient indicia of reliability. The Montana Supreme Court has provided three factors to consider when deciding if a statement (and informant) is sufficiently reliable: 1) whether the informant identified himself; 2) whether the report makes it clear that it is based on the informant’s own observations; and 3) whether the officer corroborates the statement. As to #3, the officer can corroborate the statement without witnessing any illegal activity. The statement is considered corroborated if the officer finds the suspect or suspect’s vehicle substantially as described by the informant.

Here’s a more in-depth description of the relevant law:

The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect persons against unreasonable searches and seizures, including brief investigatory stops of vehicles. State v. Jarman, 1998 MT 277, ¶ 9, 967 P.2d 1099, ¶ 7 (citing United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct 690, 694-95, 66 L.Ed.2d 621, 628). To stop a person, an officer must have a particularized and objective basis for suspecting the particular person of criminal activity. Jarman, ¶ 9 (citing Brown v. Texas (1979), 443 U.S. 47, 51, 99 S.ct 2637, 2640, 61 L.ed.2d 357, 362).

In regard to investigative stops, § 46-5-401, MCA, provides:

In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

Moreover, “[t]o justify an investigative stop, an officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” State v. Martinez, 2003 MT 65, ¶ 21, 314 Mont. 434, ¶ 21, 67 P.3d 207, ¶ 21 (citations omitted).

An officer need not personally observe illegal activity in order to have particularized suspicion justifying an investigative stop. State v. Fellers, 2004 MT 321, ¶ 21, 324 Mont. 62, 101 P.3d 764. Particularized suspicion may be based on information obtained via a citizen informant, as long as the informant’s information contains sufficient indicia of reliability. State v. Pratt, 286 Mont. 156, 164-68, 951 P.2d 37, 42-44 (1997). For an officer to effect an investigative stop based on a citizen informant’s report: (1) the citizen informant must identify himself or herself to law enforcement, (2) the report must be based upon the informant’s personal observations, and (3) the officer must corroborate the informant’s information by observing illegal activity or finding the person, the vehicle, and the vehicle’s location substantially as described by the informant. State v. Wagner, 2003 MT 120, ¶ 13, 315 Mont. 498, ¶ 13, 68 P.3d 840, ¶ 13 (citation omitted).

Even where an informant has identified himself and given a report based on personal observations, the officer must “corroborate the informant’s information by observing illegal activity or finding the person, the vehicle, and the vehicle’s location substantially as described by the informant.” Wagner, ¶ 13.

Montana DUI and Actual Physical Control

Both Montana DUI statutes apply to a person who is operating a motor vehicle, or in actual physical control of a vehicle upon the ways of this state open to the public. Troublingly, the legislature failed to define what it meant by actual physical control. Obviously a person driving is in actual physical control. What about a person sitting behind the driver’s seat, in a running car? What if the car was not running? What about a person sleeping across the driver’s and passenger’s seat with the car off? What about a person in the back seat? Unfortunately, the statutes provide very little guidance so it has been left to the Montana Supreme Court to fashion a solution. And the current law on this matter would likely surprise most people.

In 1958, the Montana Supreme Court decided State v. Rouna. In that case, the Court defined several of the terms. “Actual” was defined as “existing in act or reality.” “Physical” was defined as “bodily.” And “control” was defined as “to exercise restraining or directing influence over; to dominate; regulate; hence, to hold from action; to curb subject…” The Court found that “actual physical control” meant “existing or present bodily restraint, directing influence, domination or regulation.” Using this definition it upheld a jury instruction which said:

You are instructed that if you believe beyond a reasonable doubt that at the time charged in this coplaint, the defendant, Dr. M.A. Ruona, was seated in his car, with motor running, with the intent then and there in him, the said defendant, to drive such vehicle on a public highway or street within the State of Montana, then the defendant had actual physical control of his vehicle as provided by statute. That it need not be shown that the vehicle had actually moved or was traveling on such highway or street within said state.

In State v. Robison (1997) the Court addressed the issue again. In that case, Robison was found in a parking lot sitting in the driver’s seat of an automobile with his body, from the waist up, slumped into the passenger seat and with his feet near the pedals. He was asleep or passed out and had to be woken up by the investigators. The car was locked, but the motor was running and the lights were on. In that case, the Montana Supreme Court found that Robison’s jury instructions were in error because they “impermissibly broadened the judicial definition of actual physical control to include, as a practical matter, every intoxicated occupant of a vehicle whether or not he or she was or ever had been operating the vehicle.”

In 2005, the Court confronted a situation involving a driver who was found asleep parked the wrong way in a ditch in State v. Hudson. When he was approached by paramedics, he attempted to put the vehicle in drive. He was in the driver’s seat, the motor was running, the window was rolled down part way, the radio was playing, and the lights were on. The Supreme Court upheld jury instructions which stated that “a person is in actual physical control of a motor vehicle if the person is not a passenger, and is in a position to, and had the ability to, operate the vehicle in question.”

In this line of cases, and others, Montana has drawn a relatively test for determining whether a drunk person in a vehicle can be charged with DUI. The problem is that there are legitimate reasons to be in a vehicle while intoxicated. For a person leaving a bar alone after closing time in the winter, a running car can mean the difference between life and death. Admittedly, this makes it more difficult for law enforcement officers to determine when a driver intends to drive and when they’re simply seeking shelter, but that is not an insurmountable task. In fact, it’s one that other states have already embraced.

Maryland, for example, acknowledges this in its case law. In Akinson v. State, the Maryland Court stated: We believe that, by using the term “actual physical control,” the legislature intended to differentiate between those inebriated people who represent no threat to the public because they are only using their vehicles as shelters until they are sober enough to drive and those people who represent an imminent threat to the public by reason of their control of a vehicle. When the occupant is totally passive, has not in any way attempted to actively control the vehicle, and there is no reason to believe that the inebriated person is imminently going to control the vehicle in his or her condition, we do not believe that the legislature intended for criminal sanctions to apply.

Likewise, Arizona has established a number of factors for a court to consider when determining whether a person is in actual physical control of a vehicle. They include (but aren’t limited to): 1) Whether the vehicle was running; 2) Whether the ignition was on; 3) Where the ignition key was located; 4) Where and in what position the driver was found in the vehicle; 5) Whether the person was awake or asleep; 6) Whether the vehicle’s headlights were on; 7) Where the vehicle was stopped; 8) Whether the driver had voluntarily pulled off the road; 9) Time of day; 10) Weather conditions; 11) Whether the heater or air conditioner was on; 12) Whether the windows were up or down; and 13) Any explanation of the circumstances shown by the evidence.

At this point, Montana has not adopted the Arizona factors or taken the more inclusive view of vehicle occupancy of Maryland.

DUI License Suspension in Montana

Conviction for DUI in Montana has a number of ancillary consequences that most people aren’t aware of. One of the most significant is the automatic suspension of a driver’s license. Under section 61-5-208(2)(b)(i) of the Montana Code Annotated, a person convicted of a first offense of DUI or DUI per se shall have his or her license suspended for a period of six months. A person convicted for the second time within five years will have his or her license suspended for one year, and can not be granted a probationary license until 45 days of the 1 year suspension have passed. Also, the judge must recommend that the offender be issued a probationary license (however, it will be necessary that an ignition interlock device be installed in their vehicle).

A third or subsequent conviction of DUI within a five year period means a one year suspension of driver’s license, and a probationary license may only be issued after the offender has completed 90 days of the year long suspension. This also includes a requirement for the ignition interlock device.
Reinstatement of the license includes paying a $200 fine to the Motor Vehicle Division of the Montana Department of Justice. This applies whether or not a probationary license was issued. Many people convicted of a DUI forget this step, and end up accumulating Driving While Suspended charges later on, after assuming that their license was reinstated at the end of the suspension. If you’ve been convicted of DUI and aren’t sure whether you paid the reinstatement fee, a call to the Motor Vehicle Division might be a good idea.

A probationary license can fall under four different categories: Occupational Driving Only; Home to School and Return; Essential Driving only; or Daytime Hours Only.

Licenses restricted to “occupational driving only” may only be used by the licensee to travel to and from the regular place of employment, or in search of employment, by the most direct route from the residence in a period of time no greater than is reasonable under existing traffic conditions; and during work hours at the specific direction of the employer for purposes of carrying out assigned job related functions.
Licenses restricted to “home to school and return” may only be used by the licensee to travel between the residence and the school or educational institution in which the licensee is enrolled. Travel is only authorized immediately before and after regular school hours and must be by the most direct route between the residence and the school in a period of time no greater than is reasonable under existing traffic conditions. Driving to or from extracurricular activities is not allowed.

Licenses restricted to “essential driving only” may only be used by the licensee for occupational driving as described above; home to school driving as described above; and travel to and from the regular residence in a period of time no greater than is reasonable under existing traffic conditions for purposes related to maintenance of the household.
Licenses restricted to “daytime hours only” may only be used by the licensee to operate a motor vehicle from one-half hour before sunrise to one-half hour after sunset.

While these four options are described in the Administrative Rules of Montana, the rules also allow the Division to impose additional restrictions when appropriate. However, none of these restrictions can prohibit a driver from travelling to or from required alcohol treatment programs.

If you’ve been charged with a DUI, you are facing license suspension. While Montana is beautiful, it’s also spread out. Getting along with the ability to drive is a real hardship, and something you should consider when charged with an alcohol related driving offense. The best advice I can give you is to talk to an attorney about the possible outcomes, and see what options are available to mitigate these potential problems.

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.