Persistent Felony Offender Status in MT DUI

In August of 2011, David Kime was charged with felony DUI, careless driving, and operating a motor vehicle while a habitual traffic offender. These charges came about following a traffic accident where Kime drove through an intersection and hit another vehicle. In January of 2012, the State filed notice that it intended to seek persistent felony offender status in Kime’s case. The basis for this was Kime’s May 2009 conviction for felony DUI. Kime objected to the persistent felony offender designation, but his objection was denied by the District Court.

Ultimately, Kime pled guilty to the felony DUI charge and the State dismissed the charge of driving while a habitual traffic offender. A bench trial was held on the careless driving charge which resulted in his conviction. Kime was sentenced to ten years at the Montana State Prison with no time suspended as a persistent felony offender for the felony DUI, and to 30 days in jail on the careless driving conviction. He was given credit for 246 days of time served.

On appeal, Kime argued that the District Court erred in sentencing him as a persistent felony offender. His position was that the persistent felony offender statutes conflicted with the sentencing rules provided for felony DUI. And because the persistent felony offender statutes are general, the felony DUI sentencing statute is specific. Therefore, the DUI statute (as the more specific option) should over ride. He acknowledged that this was contrary to the Supreme Court’s precedent in State v. Damon (2005 MT 218). The Court disagreed stating that “[i]n the decisions following Damon, this Court has clearly established that the intent of the persistent felony offender statutes is that they replace the sentences for the underlying felony.” Because the persistent felony offender sentencing provisions replace the underlying felony offense there is no need to resort to the rules of statutory construction, according to the Court. It’s the purpose of the felony offender statutes to conflict with the other sentencing statutes, it’s a feature not an error.

Kime also challenged his sentencing to 30 days in jail for the careless driving, arguing that the District Court exceeded its authority when it imposed that sentence.Under 61-8-711(2) and -716, MCA, the only penalty for careless driving is a fine between $10 and $100. The Supreme Court remanded the case with instructions to the District Court to strike the illegal jail time imposed in the sentence for careless driving.

Finally, Kime raised an argument of ineffective assistance of counsel. Specifically, he said that his counsel’s failure to argue against the sentence imposed for the DUI was per se unreasonable. However, the Supreme Court pointed to numerous statements by Kime where he expressed a willingness to accept anything the District Court decided on, so long as it did not include any suspended time. The Court believed that Kime’s attorney followed his instructions, and did not provide deficient representation.

State v. Kime, 2013 MT 14

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.

Bigfork, MT DUI Attorney

As a native of Bigfork myself, I understand what it’s like to be caught on the outskirts of “town.” Surrounded by incorporated cities, the village of Bigfork occupies an interesting place in Flathead County’s legal landscape. Unlike Kalispell, Whitefish, Columbia Falls, and Polson, which all have their own city courts, Bigfork is (legally speaking) just a part of the county. And depending on how you define Bigfork’s boundaries, you may find yourself in Flathead or Lake county.

A DUI in Bigfork will be prosecuted in a county court (meaning Justice Court or District Court) in either Flathead or Lake County. As I have discussed before, whether a DUI is in Justice Court or District Court generally comes down to how many prior convictions a person has and whether this offense is a felony DUI or misdemeanor. And remember, the DUI conviction does not have to be from Montana. Drunk driving convictions from other states will count as well.

The important thing to remember, is that driving in Bigfork is no different than driving anywhere else in Montana. Operating a vehicle while under the influence of alcohol or drugs is against the law in unincorporated townships and metropolitan cities alike. If you have been accused of Driving Under the Influence in Bigfork, it is important that you protect yourself and your rights. I can help. Call today for a free initial consultation to discuss your specific situation with a DUI attorney who can give you information and guidance.

Kalispell DUI Court

Kalispell Municipal Court operates the only DUI Court in Flathead County. DUI Courts are an attempt to reduce drunk driving by habitual offenders who are not typically affected by education or public safety efforts, nor by traditional legal sanctions. A DUI Court is optional and up to the defendant. If a person chooses to use the DUI Court, he or she enters into a contract that allows the Court to impose long-term changes in behavior by treatment of underlying substance abuse issues.

Treatment for chemical dependency is a major part of the DUI Court approach. It typically involves the SCRAM bracelet for 30 to 90 days, urine analysis, EtG blood testing, and frequent breath testing at court appearances, home visits, and treatment sessions.

A progressive system of incentives and sanctions discourages continued alcohol use by increasing accountability and access to other services. Ideally, this helps the defendant achieve sobriety, learn pro-social behaviors, and become a productive member of society.

Repeat offenders are the primary target of Montana DUI Courts and the Kalispell DUI Court in particular. Kalispell’s Court is overseen by Kalispell Municipal Court Judge Heidi Ulbricht and held in her courtroom at Kalispell City Hall. It has been a Montana DUI Court since 2008 when the program began in the Flathead Valley.

Libby, MT DUI Attorney

A person charged with Driving Under the Influence in Libby, MT may face misdemeanor or felony DUI charges depending on facts specific to each offense. The charges may be filed in Libby city court, Lincoln County Justice Court, or Lincoln County District Court. Misdemeanor charges can be heard in city and justice court, while felony charges must take place in District Court.

Libby City Court is for misdemeanor DUIs which take place in Libby City limits. A drunk driving conviction in Libby City Court, or any city court, is very serious. A conviction is a permanent part of your criminal history and subjects you to the same penalties as in another court.

A DUI trial in Libby operates under the same rules as the rest of Montana. It occurs in the courtroom, and involves a judge. Testimony, evidence and arguments are admitted by attorneys and guilt or innocence is determined by a judge or jury. Some people believe that city court charges are somehow less important or serious that other courts. This is not true. You must protect your rights in city court as in Justice Court or District Court. DUI convictions in Libby are a serious matter and worth addressing.

As with any DUI charges, I offer a free consultation for defendants in Libby City Court or Lincoln County Justice or District Court. Call today to schedule a free appointment.

Drunk Driving in Kalispell

If you are arrested for Drunk Driving in Kalispell, Montana, you could find yourself in any one of a number of different courts. If you were arrested by Kalispell City Police for DUI within Kalispell city limits, you will likely be charged in Kalispell City Court with Judge Heidi Ulbricht. If you are arrested by County or State Officers, like the Flathead County Sheriff’s Department or the Montana Highway Patrol, you will be tried in Flathead County Court, meaning either Flathead Justice Court or Flathead District Court.

Almost certainly, the initial appearance for a DUI will be in Justice Court. At this hearing, you will be advised of your rights and often enter a plea of guilty or not-guilty. I almost-always recommend that people plead not-guilty at this stage.

Whether your charges are a misdemeanor DUI or a felony DUI will determine where your case goes from there. Misdemeanor DUIs are tried in Justice Court, while felony DUIs take place in District Court. For a standard DUI, whether your charges are misdemeanor or felony depend on the number of past convictions for DUI you have. A first, second, and third DUI in Montana is a misdemeanor offense. A fourth or subsequent DUI in Montana is a felony.

It is important to realize that Drunk Driving charges can have lasting effects on your life and should be treated very seriously. While it may be tempting to quickly plead guilty and have the whole affair over with, the quick fix now may haunt you for the rest of your life.

I offer a free initial consultation for people charged with DUI in Montana, and would be happy to discuss your case with you at no charge. Please consider calling me today at (406) 752-6373.

DUI in Flathead Justice Court

In Montana, a person’s first, second, and third conviction for DUI are misdemeanor offenses. This means that your case will generally be held in Justice Court. In Flathead County, the Justice Court is located on the second floor of the Justice Center.

The fourth and subsequent convictions are felonies, meaning that they must be heard in District Court, and not in Justice in Court. Justice Court is a County Court, with jurisdiction over whatever happens in the County. That means that if you are arrested for DUI in Kalispell, Whitefish, Columbia Falls, or Bigfork – you may end up in Flathead County Justice Court.

Make no mistake, Justice Court is a very real court with very real judges who can sentence you to very real jail time. Some people have the mistaken impression that Justices of the Peace only marry people. But as many DUI offenders in Flathead County can attest, a Justice of the Peace can also sentence offenders to jail time. As we’ve discussed before, even a first offense for DUI can carry up to six months in prison. That is why it is so important you protect yourself when accused of DUI in Flathead County. If you, or someone you know, has been charged with Drunk Driving, please call me today for a free consultation.

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.

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.