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.

Montana Legislators Push for Tougher DUI Laws

Anyone who follows the news in Montana knows that DUI laws are near the top of the legisture’s agenda for this session. The Flathead Beacon details the proposals by Kalispell Representative Steve Lavin to toughen DUI laws in Flathead County and the rest of Montana. One of his proposals would require repeat drunken drivers to submit to breath tests, twice a day, to prevent them from drinking. For those convicted to two or more DUIs in Montana, these tests (ideally 12 hours apart) would be mandatory. Those who fail the test could be subject to arrest and jail. The idea is based on programs which have been instituted in South Dakota and in Lewis and Clark County.

The bill requires that offenders pay for the testing themselves. According to the article, this would come to about $2 per test. But I have to wonder how these figures are calculated. If every resident of Flathead County who has been convicted of two or more DUIs was required to visit the Sheriff’s office twice a day for UI test, I believe the impact would be very significant. The cost of an individual test may be about $2. But how much will it cost the County in terms of man power to supervise and administrate. Will the $2 cover the hiring of additional personnel? I doubt it.

As the article points out, cries to amend Montana DUI laws are a common theme in every legislative session. But the tragedies of the last year may finally result in some major changes.

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.

Prison Turns Tough on Crime Congressman into Reform Supporter

Former California Congressman Duke Cunningham was known for being tough on crime while serving as a legislator. Now, he’s known for taking bribes – a crime for which he is serving 8 years in prison. In the abstract, being tough on crime (and particularly defendants) seemed easy to Duke. But now that he has personal experience, and has met the people his policies impacted (and the lives he ruined) Duke is singing a different tune.

“I didn’t know jack weenie about what people were going through in here,” Cunningham said in an interview this month with The San Diego Union Tribune.

It’s amazing what a little knowledge can do. The article says it well:

In an ideal world, of course, it wouldn’t take firsthand experience in a prison cell for someone like Cunningham to be able to empathize with those individuals who make up the U.S.’s massive prison population, which weighs in at a record-breaking 2.3 million souls. But having lived a life of privilege, spared even the indignity of having to go through airport security, Cunningham and other members of Congress typically never come in contact with the same criminal justice system as their constituents. Prison is for other people — bad people — not the political and economic elite, which makes it all the easier on one’s conscience to send people there. Not having experienced injustice at the hands of the system themselves, it’s easy to pretend those behind bars are all there because they’re guilty — and because they deserve to be there, damn it.

Here’s to hoping for ideal worlds. But I have a feeling that Duke’s revelation will have little impact on sentencing nationwide. But wars are fought one battle at a time, and you never know which victory will be decisive. So congratulations to Duke Cunningham for opening his eyes and seeing something uncomfortable but important. And here’s to hoping that we don’t need to send our entire congressional delegation to jail to bring about some changes.

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.

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?

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.