The Preliminary Breath Test in Montana

When a driver suspected of DUI is stopped in Montana, the officer will determine whether there is a particularized suspicion to believe that the driver is intoxicated. If the driver has such a suspicion, he may ask the driver to submit to a preliminary alcohol screening test (PAST). This is what is commonly called the breath test, or “blowing.”

By driving on the roads of the state of Montana, you have consented to such a test. Under Montana statute 61-8-409(1) “a person who operates or is in actual physical control of a vehicle upon ways of ths state open to the public is considered to have given consent to a preliminary alcohol screening test of the person’s breath.”

Of course, you can refuse the test – but doing so results in the suspension of your license for up to a year. But, you can request a hearing to challenge the suspension where the court will examine whether the officer legitimately had a particularized suspicion that you were driving while under the influence of alcohol. The court will also examine whether you actually refused to submit to the test.

The Montana Supreme Court has ruled that only a particularized suspicion that the driver was under the influence of alcohol, and does not need the higher standard of probable cause. State v. Toth, 317 Mont. 55 (2003).

Also, evidence from this test are not substantive evidence of the amount of alcohol present in a person’s body. Instead, it is just an estimate of alcohol concentration for the purpose of establishing probable cause to believe that person is under the influence of alcohol prior to making an arrest. State v. Strizich, 286 Mont. 1 (1997).

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