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.

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