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.

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.

Deferred Prosecutions in Montana DUI

A deferred prosecution is a type of plea bargain, and basically a contract with the Court where you agree to meet certain conditions in exchange for the Court agreeing to postpone prosecution of your case. If you complete all the requirements, your case will be dismissed and no conviction will be entered against you. Let that sink in for a minute. No conviction. Not for anything. You can see why deferred prosecutions are very appealing to Montana DUI defendants.

In a way, a deferred prosecution is like a bet with the Court. You are betting that you can go the required time without having any more legal troubles. If you win the bet, you get a great result. If you lose the bet, you generally get a worse result. Because not only do you have the original problem bearing down on you again, but you’ve also proven to the prosecutor that you can’t keep your nose clean for a relatively short period of time.

Especially for first time DUI defendants, this case is the only time they will face legal troubles in their lives. For them, a deferred prosecution is an excellent option, and exactly the sort of situation this was designed for. It allows the Court to supervise the person for a period of time and make sure they can stay out of trouble, but (assuming it works) allows the defendant to keep their record clean of a DUI.

Negotiating a deferred sentence in a Montana DUI can be a trick proposition and requires a thorough understanding of the law and procedures surrounding Drunk Driving charges. I offer a free consultation, what have you go to lose?

Montana DUI Plea Agreements

A plea agreement is a compromise between the prosecution and the defense. It typically involves the defendant pleading guilty to some charge (often a less serious one than that originally charged), in exchange for other charges being dropped and often a recommendation from the prosecutor regarding sentencing. For example, a defendant charged with DUI and an open container violation might plead guilty to reckless driving in exchange for having the DUI and open container charges dropped. This is just an example of a possible outcome.

In order to enter into a plea agreement, the defendant must be advised that 1) the Court is not bound by plea agreements; 2) if the Court rejects a plea agreement which calls for a specific recommendation jointly made by the prosecution and defense, the Court shall inform the parties, afford the defendant an opportunity to withdraw the plea, and advise the defendant that if the defendant persists in the guilty plea, the disposition of the case may be less favorable than the plea agreement.

However, if the plea bargain does not involve a recommendation by the prosecution (and only an agreement that the prosecutor will not oppose the defendant’s recommendation) – the Court does not have to allow the defendant to withdraw from a guilty plea.

You may have heard the adage that an oral contract is worth the paper that it is printed on, but in Montana – an oral plea bargain is binding. This can be helpful to those charged with DUI when the prosecutor makes an offer he later regrets. But it can be a problem when the defendant regrets his decision later. So remember, always think carefully and consult an attorney before entering into any sort of plea bargaining for Montana DUI.

Whitefish DUI Attorney

Whitefish Municipal Court is the city court of Whitefish, Montana. For misdemeanor DUIs which are alleged to have occurred within Whitefish city limits, this Court has jurisdiction. If you’ve been charged with a DUI in Whitefish, the charges may be for a DUI or a DUI per se. A DUI conviction in Whitefish Municipal Court, or any city court, is just as serious as anywhere else. The conviction becomes a permanent part of your criminal history and you are subject to the same range of penalties as in county court.

Whitefish DUI AttorneyA DUI trial in Whitefish is no different than anywhere else. It occurs in the courtroom located at the Whitefish Emergency Services Center, and involves a judge, the Honorable Bradley Johnson, presiding over testimony, evidence and arguments. Some of my clients have been under the mistaken impression that city court charges are somehow less important that others. This is just not true, and it is just important to protect your rights in city court as in Justice Court or District Court. DUI convictions in Whitefish Municipal Court are a serious matter and worth addressing.

Cases usually begin with an arrest by the Whitefish Police Department. Whether this stems from a traffic stop or a traffic accident, the investigation and arrest are handled by local police officers. Most often, following an arrest for DUI in Whitefish, the accused are transported to Flathead County Detention Center. This can lead to some confusion as to whether the charges are in Whitefish Municipal Court, or in a Flathead County Court. The fact that you were transported to FVDC does not change where your charges initiated. The best way to tell what court your case is in is to examine the paperwork you were given following the arrest. But, as a rule of thumb, if you were arrested for your first, second, or third DUI in Whitefish City limits, odds are that your case is being handled by city court.

As with any DUI charges, I offer a free consultation and flat fees for defendants in Whitefish Municipal Court. Call today to speak with me or to schedule a free appointment without any obligation. (406) 752-6373.

Arraignment in Montana DUI Cases

Arraignment is the proceeding where the defendant may plead guilty or not guilty to the charge. Before accepting the plea, the judge must advise the defendant of all the rights listed in 46-12-210 and 46-7-102 MCA. The arraignment may be conducted with the defendant physically present before the Court or by two-way electronic audio-video communication pursuant to 46-12-201(4) MCA.

At the arraignment, the Court must inform the defendant of the charge and should do so by reading the complaint aloud to the defendant. The judge should explain that the defendant is charged with driving under the influence of alcohol and/or drugs or driving with .08 or more AC, and that the charge is not what is traditionally known as “Drunken Driving.” The Court should ask if the defendant has a copy of the complaint. If not, a copy of the complaint must be given to the defendant.

The possible punishment specific to a first or subsequent violation must be explained to the defendant.

The Court is required to inform the defendant of the following constitutional and Statutory rights:

  1. the right to counsel and to have counsel appointed if the defendant cannot afford one (See Section II Part A “Initial Appearance”);
  2. the right to trial by jury, in either the limited jurisdiction court or at the district court level, or a trial before the judge;
  3. the right to confront and cross-examine witnesses;
  4. the right to subpoena witnesses on behalf of the defendant;
  5. the right to remain silent throughout the proceeding;
  6. the right to be proven guilty beyond a reasonable doubt;
  7. a guilty plea may result in deportation for an alien; and
  8. that a plea of guilty may waive the right to trial and appeal.

Additionally:
(9) the defendant has the right to a reasonable time before entering a plea. At least one day must be given to the defendant on request. If the Defendant remains in custody, (10) then the right to secure bail to be released from custody must be explained to the defendant.

Once advised of his rights, the defendant may plead guilty, not guilty, or nolo contendere to the complaint. If he refuses to plead, the Court must enter a plea of not guilty.

DUI Initial Appearances in Montana

After DUI charges are filed there are three basic stages to the case: 1) Initial Appearance; 2) Arraignment; and 3) Trial. Although most people think of trials when they think of Court, the truth is that many Montana DUIs are resolved without a trial.

State law requires that after a person is arrested, he must be taken before the nearest and most accessible judge without unnecessary delay for an initial appearance. The judge must advise the defendant of the charge or charges filed and of the right to

  • counsel;
  • to appointed counsel if the defendant cannot afford a DUI attorney;
  • to bail;
  • to remain silent and that any statement made may be used against him as evidence;
  • to a probable cause hearing for a felony;
  • of the right to a jury trial for any misdemeanor charge.

Montana statute 46-12-210 lays out all the rights that a defendant must be advised of at arraignment, including the possible penalties for the crime charged. At the initial appearance, the judge must set bail or release the defendant on his own recognizance bail. In practice, many Montanans charged with DUI will have their initial appearance and arraignment at the same time.

Montana DUI Court

A new specialty court designed to intervene with repeat drunken driving offenders will open in Butte on October 1st. Currently the Court has funding to stay open for the next three years based on a Department of Justice grant.

The DUI court is designed for people convicted of two or three misdemeanor DUIs and who are at high risk to re-offend. The court may also select young drivers with one DUI, but who had a high blood-alcohol level. The court will only deal with misdemeanor offenders. Under Montana law, people are not charged with a felony until their fourth drunken driving offense.

The four-phase program may last 12 to 18 months for individuals. The court will include judicially monitored treatment programs and supervision. The goal is to provide incentives through the treatment for the offender not to re-offend once completing the program.

The goal is to get 15 offenders into the program in the first year. However, he said they will soon be able to handle as many as 50 people as the court gains momentum.