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.

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.

Montana Public Defenders in DUI Cases

A fundamental tenant of our criminal justice system is that persons accused of a crime are entitled to representation in court by an attorney. For certain crimes, if the accused cannot afford an attorney, Montana will provide one; a public defender. So when does someone accused of DUI qualify for a public defender? When the person is indigent, as defined by Montana law.

In order to qualify as indigent, Montana statute 47-1-111 says that a person’s gross household income must be at or below 133% the federal poverty standard.This number is based on household size. For 2010, 133% of the poverty level for a house of 1 is $14,403.90. If you make that much a year, or less, you would qualify for a public defender in Montana. For a household of 2, it is $19,378.10. The government provides a table of these figures at:

https://www.cms.gov/MedicaidEligibility/downloads/POV10Combo.pdf

Montana courts make an initial determination of whether to appoint the a public defender in DUI cases. Interestingly, upon the courts referral to the public defender, they must take the case. The order for a public defender in a DUI case can be rescinded later, but until that time the person is entitled to the full benefic of public defender services.

Montana public defenders provide an invaluable service for people accused of drunk driving. It is vital that DUI defendants in Montana have professional legal representation in order to protect their rights and freedom.