Omnibus Hearings in Montana

Following an arrest for DUI in Montana, a defendant’s first hearing is an initial appearance. The purpose of that hearing is for the Court to advise the defendant of the charges against him and the maximum possible penalties he faces. It is usually combined with an arraignment, where the defendant enters a plea to the charges (usually not guilty). By pleading not guilty, the defendant sets the case in motion and toward a trial. As I’ve said before, must first time DUIs do not go to trial, but while it is pending – everyone will treat the case as if it is going to trial (or at least they should).

The next regularly scheduled hearing in a DUI case is the omnibus hearing. The name is often shortened to “omni.” Statutorily, the hearing is defined at 46-13-110, MCA which requires that it be held within a reasonable time following the entry of a not guilty plea but not less than 30 days before trial. The purpose of the hearing, according to the statute, is to expedite the procedures leading up to the trial of the defendant. Technically, the presence of the defendant is not required at the omnibus hearing. However, often the conditions of release following a DUI arrest require a person to attend all court hearings. This complicates it. On the other side of the issue, the Montana Supreme Court has decided that omnibus hearings constitute a “critical stage” of the proceeding and qualify as a hearing that the defendant has an absolute right to attend. For those reasons, if you are going to be absent from your omnibus hearing, it’s a good idea to inform the Court ahead of time.

The prosecution and the counsel for the defense are required to attend the hearing, and need to be prepared to discuss any pretrial matter appropriate to the case. This includes, without limitation:

(a) joinder and severance of offenses or defendants;

(b) double jeopardy;

(c) the need for exclusion of the public and for sealing records of any pretrial proceedings;

(d) notification of the existence of a plea agreement;

(e) disclosure and discovery motions;

(f) notice of reliance on certain defenses;

(g) notice of seeking persistent felony offender status;

(h) motion to suppress;

(i) motion to dismiss;

(j) motion for change of place of trial;

(k) reasonableness of bail; and

(l) stipulations.

The omnibus hearing provides a deadline for many of the motions listed above. For example, a party has a statutory mandate to bring a motion to suppress at or before the omnibus hearing, or at the latest by a subsequent date ordered by the court, and the consequence of failure to do so is waiver of the right to bring a motion to suppress. State v. VonBergan, 2003 MT 265.

Interestingly, the fact that the hearing is required by statute does not necessarily mean that the Courts are required to hold one. Several times, the Montana Supreme Court has found that the failure to hold an omnibus hearing did not constitute reversible error. In State v. Allum (2005 MT 150), the Court found that the Defendant was not entitled to reversal of his conviction for criminal trespass on the grounds that the municipal court did not hold an omnibus hearing, absent any showing that the defendant was prejudiced by the lack of hearing. Likewise, in State v. Hildreth (267 Mont. 423 (1994)), the Court found that the Defendant was not prejudiced by the trial court’s failure to hold an omnibus hearing in a prosecution for sexual assault.

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.

State v. Flynn | MT Supreme Court DUI Case

State v. Flynn is a Montana Supreme Court decisions involving a DUI case. Specifically, the issue for the Court was whether the Deputy had particularized suspicion to stop Flynn’s vehicle. Particularized suspicion is an important concept in Montana DUI law, and something that I have discussed before on here.

A police officer must have a particularized suspicion in order to stop a vehicle in Montana. To show sufficient cause to stop a vehicle, the State must show 1) objective data from which an experienced officer can make certain inferences; and 2) a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was witness to criminal activity.

In Flynn’s case, the Deputy testified that he saw Flynn’s truck cross the fog line three separate times over the course of about .3 miles. The question in the case was whether this justified stopping his vehicle (a stop which resulted in a DUI arrest).

Flynn’s attorney made a number of arguments, one being that under State v. Lafferty, crossing the fog line does not justify a traffic stop. The Montana Supreme Court clarified that Lafferty stated that crossing the fog line was not illegal. But an officer does not need to witness illegal behavior to form a particularized suspicion.

The Court also noted that the particularized suspicion analysis must focus on what the officer knew at the time of the stop – and that he doesn’t need to consider every possible legitimate excuse a driver may have.

With these things in mind, the Court found that the officer did have a sufficient particularized suspicion to initiate the stop.

Call me today at 406-752-6373 to schedule a free consultation to discuss your DUI case.

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.

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.

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.

Dealing with Officers in a DUI Stop

Let me be clear: no matter what you remember learning on Leave it to Beaver, a Montana police officer who has stopped you on suspicion of DUI is not your friend. He is not trying to help you. And, you should not do anything to make his job easier (unless it benefits you). The officer’s job is to collect enough evidence to justify an arrest and ultimately convict you at trial. He may be very friendly about doing this. He may act like he is only trying to be helpful. He is not. He is doing his job, plain and simple. A salesman sells things, a barber cuts hair, and a police officer arrests people.

That being said, it is very important that you be polite, courteous, and respectful. Believe it or not, being a huge jerk to a police officer is a great way to make things must worse for yourself (no matter what your situation was to begin with). This does not mean that you must be helpful however, Never volunteer information. You MUST provide your name, driver’s license, registration and proof of insurance. You do not need to answer questions about how much you have had to drink, or whether you have consumed any illegal drugs.

Whether or not you have been read your Miranda rights, you ALWAYS have the right to an attorney. You also have the right to remain silent. Not all traffic stops rise to the level of a “custodial interrogation” meaning that officers do not always have to read you your rights. But whether or not you have been read your rights, you always have your rights. Don’t be afraid to invoke them. Ask for an attorney. Tell the officer you intend to remain silent. These are your rights under the Montana Constitution and Federal Constitution.

You should be polite, but that doesn’t mean helping the officer make a case against you.

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.