Hearsay in a Montana DUI Trial

Evidence is a funny thing. On the one hand, we want the jury to be able to consider as much information as possible in order to reach the correct conclusion. But after a lot of trial and error, we have discovered that some types of information are more trouble than they are worth. For example, allowing one person to testify about what a second person said could be a problem. Doing it when the second person isn’t going to testify is a serious problem. For that reason, the Montana rules of evidence prohibit Hearsay testimony unless it fits under certain exceptions.

Montana Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” In Montana this could be an oral or written assertion or the nonverbal conduct of a person. Hearsay is not admissible, unless otherwise allowed in the law. Because the definition of hearsay is relatively simple, legal arguments involving hearsay have more to do with the exceptions.

Montana Rule of Evidence 803 contains 24 exceptions and rule 804 contains 5 exceptions. And really, these are better thought of as categories of exceptions instead of individual ones – which means there are a lot of times when something that otherwise qualifies as hearsay evidence is admitted in a Montana DUI trial.

As I’ve discussed before, a good Montana DUI attorney keeps as much evidence out as he introduces. A strong knowledge of the Montana Rules of Evidence is essential to accomplish this – and familiarity with hearsay is vital.

If you have questions about a Montana DUI, or what evidence from the investigation could actually be used against you in Court, please call me today to schedule a free meeting. You can reach me at 752-6373 to schedule your free phone or in person consultation.

What to do After a DUI Arrest in Montana

If you’ve been arrested for a DUI in Montana, here is a list of things that you should do:

If your license was revoked because you refused a test, you should file a Petition for Return of Driver’s License.  In Montana you have 30 days to request the hearing in District Court for the County where you have been charged.

Don’t make assumptions. Just because you were registered at having a BAC over 0.08 doesn’t mean you’ve lost your case.  Let your Montana DUI attorney investigate to make sure that the reading was accurate.

Write everything down you can remember about the incident.

Gather witnesses who can testify about that night. Especially if they can help pin down how much you had to drink and that you were sober.

Do not fail to appear in Court. When you were released, you were given a Court date. Don’t miss it.

Call an attorney. Find one (like myself) who offers a free consultation. At the very least, pick their brain and learn everything you can for an hour. Even if you don’t decide to hire him, you’ll leave the appointment knowing more than you did before.

Failing to become educated and understanding the dangers of a DUI is probably the most important thing to think about.  Most people don’t understand the implications of their DUI arrest.

If you have been charged with DUI in Montana, call me today at 406-752-6373 to schedule a free appointment. Learn everything you can, because I can assure you the Prosecutor has done this before.

Rep. Hale Defends Drunk Driving

I defend the rights of people accused of DUI in Montana not because I think driving drunk is a good thing, but because I believe people accused of any crime are innocent until proven guilty and deserve the constitutional protections of any citizen. Montana State Representative Hale of Basin apparently goes all the way, and believes that drunk driving in Montana is a “way of life” and that tougher DUI laws will destroy that.

While I worry that some of the DUI “reform” currently being considered by the Montana Legislature will result in more convictions of innocent drivers, I do not support drunk driving.

Click here to watch the video of Representative Hale’s speech.

Missoula DUI Attorney

As a Montana DUI Attorney, I serve all of western Montana – representing ordinary people accused of drunk driving or diving while impaired. Because of its size, Missoula is one of the major areas for DUI charges. As one of the largest cities in the state, Missoula has a huge number of DUI arrests and charges each year. Between Missoula Municipal Court, Missoula Justice Court, and Missoula District Court, there are a number of places your DUI charges could be filed. But the same rules apply as they do across the state of Montana regarding which Missoula Court has jurisdiction for the DUI.

Because I specialize in DUI, the location of the Court makes little difference (so long as its within the state of Montana). The faces change, but the law stays the same. In Missoula, Kalispell, Bozeman or Miles City a Montana DUI is a Montana DUI. And the defendants are entitled to the same rights and protections anywhere in the state.

If you have been accused of a DUI in Missoula, please call me for a free consultation. Although my office is in Kalispell, my practice is across western Montana. Call 406-752-6373 to set up a free, no obligation, consultation either over the phone or in person. At those prices, what have you got to lose?

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.

Conditions of Release in a Montana DUI Case

When a Montanan accused of DUI is released from custody before trial, it is common practice to require they pay bail. The money given to the Court for bail is held to encourage the defendant to continue to make all his appearances and not leave the jurisdiction before trial. If he fails to do so, the Court keeps the bail money and a warrant is issued for his arrest.

The same power that allows the Court to set bail, also allows the Court to set certain conditions of release. Some common requirements are:

  • that the defendant not change his residence without first notifying the Court;
  • that the defendant not change his phone number or mailing address without first notifying the Court;
  • that the defendant maintain contact with his attorney;
  • that the defendant authorize his attorney to notify the Court if contact has been lost;
  • that the defendant remain law abiding in all respects;
  • that the defendant not consume alcoholic beverages;
  • that the defendant not enter bars, taverns, casinos, or any other establishment where alcoholic beverages are served as a main item of sale;
  • that the defendant not have contact with anyone alleged to be a victim of the incident;
  • that the defendant submit to continuous alcohol monitoring by means of a secure continuous remote alcohol monitoring system (SCRAM); and
  • that the defendant not possess firearms of any type.

These are just a general list of some common limitations. The Court may impose different restrictions on a case by case basis, depending on the specifics of a persons offense. The limitation on firearms is often not imposed for DUI defendants because the nature of their crime doesn’t involve guns. However, for  a DUI case in Montana, you can be virtually sure that one condition will be that you not consume any alcohol during your release, and that you avoid bars. Exceptions can be made for employment purposes – but working in a bar is a tough way to convince the prosecutor that you won’t be tempted by alcohol in the future.

If you have been subjected to release restrictions and have questions about them, please call me today to schedule a free meeting. My number of 406-752-6373 and I would be happy to discuss this or any other issue related to Montana DUI with you.

Montana ACT Program Providers

Almost every DUI I handle that doesn’t result in a not-guilty verdict or an outright dismissal includes a requirement that the defendant complete an approved ACT Program and complete any suggested follow-up treatment.

Currently in Kalispell, there is only one approved ACT Provider: Flathead Valley Chemical Dependency Clinic. As of today, they are charging $375 for the program. They can be reached by calling 756-6453 for the Kalispell office. They also have offices in Eureka, Libby, and Thompson Falls.

The next closest alternative for those of us in the Flathead is Western Montana Addiction Services, with offices in Missoula and Polson. In Missoula, they can be reached at 406-532-9800 and in Polson their number is 406-883-7310.

As a reminder, completing the ACT class is often a condition of a plea deal. If you have plead in a DUI case (or to reckless driving where the original charges were DUI) and agreed to enroll in the ACT program within a certain amount of time: MAKE SURE YOU DO IT. The last thing you want is to jeopardize your freedom because you didn’t get moving and make a phone call to take a class.

If you have any questions about the ACT Class or ACT Providers, please call me at 406-752-6373. I offer a free first meeting with people accused of DUI so you’ve really got nothing to lose.

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.