Aggravated DUI

In 2011, Montana expanded its DUI laws by adding a new entry to the list: Aggravated DUI. Defined at Section 61-8-722, MCA, the offense of Aggravated DUI piggybacks on the other DUI offenses and provides for enhanced penalties when certain factors are present. Under the law, a person commits the offense of aggravated driving under the influence if the person is in violation of 61-8-401 (DUI), 61-8-406 (DUI per se), or 61-8-411 (DUI marijuana) and at the time of the offense:

(a) The person’s blood alcohol concentration is 0.16 or more;

(b) The person is under the order of a court or the department to equip any motor vehicle the person operates with an approved ignition interlock device;

(c) The person’s driver’s license or privilege to drive is suspended, cancelled, or revoked as a result of a prior violation of 61-8-401, 61-8-402, 61-8-406, or 61-8-411;

(d) The person refuses to provide a breath or blood sample as required in 61-8-402 and the person’s driver’s license or privilege to drive was suspended, cancelled, or revoked under 61-8-402 within 10 years of the commission of the present offense; or

(e) The person has one prior conviction or pending charge for the violation of 45-5-106, 45-5-205, 61-8-401, 61-8-406, 61-8-411.

So, if you’re convicted of DUI and one of the factors listed above as (a)-(e) exist, you can be sentenced for Aggravated DUI. A person convicted of the offense of aggravated driving under the influence shall be punished by:

(a) a fine of $1,000; and

(b) a term of imprisonment of not more than 1 year, part of which may be suspended, except for the mandatory minimum sentences set forth in 61-8-714

If a suspended sentence is imposed, the sentencing court may order additional restrictions, such as:

(a) the person is subject to all conditions of the suspended sentence imposed by the court, including mandatory participation in drug or DUI courts if available;

(b) the person is subject to all conditions of the 24/7 sobriety and drug monitoring program if available and if imposed by the court; and

(c) if the person violates any condition of the suspended sentence or any treatment required, the court may impose the remainder of any imprisonment term that was imposed and suspended.

Practically, what does this mean? If a person is convicted of DUI per se and the state proves that his blood alcohol level was 0.16 or higher at the time, he can be punished under the Aggravated DUI statutes. Ordinarily for DUI per se, the maximum sentence would be six months. But because aggravated DUI applies, the maximum sentence doubles to one year. So, the offender can be given a one year sentence with some portion of it suspended. The mandatory minimum would be 24 hours, so if the court suspends all but 24 hours that would leave a suspended sentence of 364 days. In addition to any other conditions imposed on the suspended sentence, the Aggravated DUI statute specifically allows the court to require that the person be subject to the 24/7 program for that year. This will require invasive and expensive alcohol monitoring for the duration of the suspended sentence.

The big takeaway here is that conviction for Aggravated DUI is a much more serious offense. DUIs should never be taken lightly, but this is another level beyond that. You risk being under court supervision for a year and being subject to alcohol monitoring (at your expense) for that entire time. If you’ve been charged with Aggravated DUI (or think you qualify under the factors listed above) I’d encourage you to immediately discuss the situation with a Montana DUI lawyer who can evaluate your specific circumstances and give you the right advice.

If you’d like to talk to me about your case, please call (406) 752-6373.

A Montana DUI Jury Trial

For people accused of DUI, or any crime, in Montana, a large number of constitutional protections apply. These include protections against unlawful search and seizure, the protection against Double Jeopardy, and the right to a jury trial. As I’ve discussed before, the State must prove all the elements of a charge beyond a reasonable doubt. The person (or people) they must prove this to is called the fact finder. For both misdemeanor DUIs and felony DUIs, the defendant has a constitutional right to select a jury trial.

In a jury trial, the fact finder is the jury. Citizens from the county where the trial is taking place will make up the jury. For example, if you are charged with DUI in Flathead County, Montana – the jurors will come from Flathead County. If you are charged with DUI in Lake County, Montana – the jurors will come from Lake County.

The jury should consist of people who know nothing (or as little as possible) about you and the facts of this case. The reason for this is very important. Only admissible evidence can be considered by the jury when they are reaching their verdict. And everything that is printed in the newspaper may not be admissible. Everything that your neighbor might know about the case might not be admissible. If a jury member comes to the trial already knowing things that should not be considered, it is ridiculous to think that they will completely forget that fact for the purposes of the trial. In fact, it is probably ridiculous to think that they won’t tell their fellow jurors what they know. Everyone likes to know a secret.

In a jury trial, the jury considers the admissible evidence and then decides whether the State has proven the elements of the charge beyond a reasonable doubt. If the jury finds that the State failed to prove even one element beyond a reasonable doubt, they should find the defendant not guilty. How this works in practice is a different matter, and one I would be happy to discuss with you. I offer a free consultations to answer exactly these kinds of questions. Call me at (406) 752-6373 to schedule your free meeting.

The Burden of Proof in MT DUI Trial

Most DUI cases in Montana do not go to trial. There are a thousand different reasons for this, and they’re not worth getting in to at this time. However, it is a defendants unequivocal right to have all the elements of any criminal charges against him proven by the State beyond a reasonable doubt.

At trial the State will present its case and the Defendant will present his. Many people think of a defense attorney’s job as putting on the best possible story for his client. But often the most important part of my work is limiting the State’s case as much as possible. So when they try to present evidence of Breath Alcohol Content (B.A.C.) I make sure that the test complied with the many and strict constitutional requirements of the State and Federal Constitutions. If it doesn’t, then the evidence is inadmissible and cannot be shown to a jury or considered by a judge. If the State cannot prove an element of the case, then they cannot meet their burden and the charges must be dismissed.

So while the case your attorney builds is vital – what he manages to keep out of the State’s case may be even more important.

The elements of a DUI in Montana consist of proving that the Defendant:

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

for a DUI Per Se violation, the prosecution must prove that the defendant:

  1. was driving or in actual physical control of a vehicle;
  2. upon the ways of this state open to the public;
  3. while the alcohol concentration in the blood, breath or urine was 0.08 or more; and
  4. within city/county to establish venue and jurisdiction.

If you have questions about what needs to be proved for a DUI or DUI Per Se in Montana, call me today to discuss your case. I offer a free consultation and am always happy to take the time to help people understand their legal situation. Call 406-752-6373 to schedule a free consultation.

Montana DUI: License Suspension

Montana law provides for immediate and automatic suspension and revocation of a driver’s license if you refuse to comply with a valid request for a Alcohol Content (AC) Test. This could be either a Portable Breath Test (PBT) at the scene, or a more technical and accurate test at the station, or a blood test later. If you refuse to comply with any of these tests your license will automatically be taken away. If it is your first refusal, you will lose your license for 6 months. A subsequent refusal (within 5 years of the past refusal) results in losing your license for one year. You’ll be given a temporary license for 5 days.

My advice is to use those 5 days to find a good DUI Lawyer. In Montana, the suspension/revocation under the implied consent law can be appealed to District Court with the hope of reinstating your license. This MUST be done within 30 days of losing your license. Do not wait. Go immediately to discuss your options with a lawyer, because it will take some time for your DUI attorney to get things in order before the proper documents can be filed. I offer a free consultation for DUI matters, so there’s really nothing to lose by picking up the phone and scheduling a consultation.

There are four issues on appeal in a case like this: 1) whether the officer had “reasonable grounds” to believe that you were driving under the influence; 2) whether you were under the age of 21 and placed under arrest for DUI; 3) whether the officer had “probable cause” to believe that you were driving under the influence and part of an accident resulting in property damage, personal injury, or death; and 4) whether you actually refused to submit to the test.

One thing to remember is that the officer MUST inform you of the consequences of a refusal to comply with the test. Most Montana police departments that I am aware of now have a standard form that you sign when you refuse to participate in the test. It lays out the consequences of a refusal. ALWAYS read something carefully before signing it. You never want to be in front of a judge claiming you signed something without understanding it or reading it. This applies throughout your life, and especially if you have been stopped for suspicion of DUI (or any crime).

Finally, remember that once you refuse the test – you can not take it back. Under Johnson v. Motor Vehicles Division and Hunter v. State the Montana Supreme Court has clearly said that a subsequent attempt to withdraw a refusal is no fix. Always, always, always think before you act.

If you’ve been charged with DUI and had your license revoked for refusal to give an Alcohol Content Test, call me today to discuss your options. You can reach my office at 406-752-6373 and schedule a free consultation.

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.