Montana Drunk Driving Defense Attorneys
- Billings
- Gregory Johnson:
You should consult an attorney for individual advice regarding your own situation.
- Arndorfer Law Firm:
DUI ALLEGATIONS
The charge of driving under the influence is very serious allegation. It will follow you for the rest of your life. The question is often asked in questionaires for Life or Health Insurance applications, along with many other types of applications.
Montana has passed a Felony DUI statute that makes it a felony offense if you have ever had three previous convictions in your lifetime. When people say it "stays on your record" for five years, this is simply not true. It is always there. For puposes of first, second or third offense it is within five years. For points toward a Habitual Traffic Offender it is points within three years. However, for being of record, it is always there.
Montana has a similar crime, called Driving with a Blood Alcohol Content of .08 or more. It has all the same implications, including points toward Habitual Traffic Offender and being counted in first, second or third offenses of either charge. The only difference is mandatory jail time.
- Bozeman
- Watson Law Offices:
Arrest
An arrest is not a conviction. It simply means that the police has probable cause to believe that you committed a crime. Probable cause is a subjective standard, but essentially means that it is more likely than not (more than 50%) that you did something wrong in the view of the police.
Miranda Rights
You're probably familiar with Miranda Rights from television shows. Miranda Rights originated from a United States Supreme Court case, Miranda v. Arizona, in which the Supreme Court set forth certain rights that the police must tell a person when they are arrested prior to interrogation or questioning. These rights are that you have the right to remain silent, that anything you say can be used against you in court and that you have a right to an attorney.
A common misconception is that if you are not read your rights, you go free. In reality, Miranda Rights only serve to protect people from incriminating themselves after an arrest. In the event you were not read your rights, yet gave a statement or said things to the police that might incriminate you during an interrogation, it may be possible to "suppress" the evidence by motion.
However, it is possible to waive the right to remain silent by either stating as much, signing a waiver or voluntarily making a statement.
Decision to Charge
The decision as to whether you will be charged with a crime rests with the Warrant Officer. The Warrant Officer is generally an assistant prosecuting attorney who reviews the case file and determines if there is sufficient reason to file charges.
Bail
If you are charged with a crime, bail will most likely be set by the court. Bail is an amount of money or a pledge of property that is designed to ensure that you appear in court. Sometimes the court will reduce your bail at the request of your lawyer.
Arraignment
Arraignment is the first appearance before the court in which you enter a plea. The court will then set the next date to allow for an exchange of information between the prosecutor and your lawyer and possible negotiations.
Discovery
You are entitled to receive all information the prosecuting attorney has regarding your case, including all information which may benefit you. The prosecutor may not pick and choose what information to provide.
Preliminary Hearing
At your option, you may elect to have a preliminary hearing in which the court hears evidence from the prosecutor and makes a determination whether there is probable cause to proceed with the case. At this hearing, only the prosecution's case is heard and your attorney is allowed to cross examine their witnesses and scrutinize their evidence.
Plea Bargaining
It is common for the prosecution and defendant to engage in plea bargaining. Plea bargaining may include a reduction of the charges or some incentive by the prosecution to resolve the case between the parties. Plea bargaining can be useful because whether you agree to a resolution is voluntary and takes the risk out of the process.
Trial
The constitution guarantees your right to a jury trial if you so request. It also guarantees you the right to confront your accuser, to scrutinize their evidence and cross examine. If you choose this option, your fate then rests with the jury.
Sentencing
If you plead guilty pursuant to a plea bargain or if you are found guilty at trial, a judge will sentence you at a hearing. At this hearing you will be entitled to make a statement to the court, if desired, and possibly produce evidence and testimony which may convince the court to lessen the punishment. If you are being sentenced pursuant to a plea bargain, however, the sentence that the prosecutor recommends (which you would have agreed to) is generally accepted by the court, so there is no need to present evidence.
Appeals
If you are convicted at trial, you are entitled to appeal the decision. The grounds for appeal are limited. In other words, your case is not re-tried, the appellate court looks for error in the application of the law, procedural errors at trial or other errors in the process. If you accept a plea bargain, you waive your right to appeal.
- Peeler Law Office:
You may be intertwined in the criminal process, bewildered by allegations, not knowing which way to turn. You are entitled to notice and an opportunity to be heard in defense of criminal allegations asserted against you. Criminal procedures entitle you to fair and just consideration under the law. Understanding your rights and proper investigation of the underlying facts of your case are crucial in obtaining fair and just treatment in the criminal justice system.
- Great Falls:
- Mark Bauer:
All lawyers involved in the criminal justice process, whether they are prosecuting or defending, must adhere to a complex set of rules of criminal procedure to ensure a fair trial. Because of this complicated procedure, only lawyers experienced in criminal defense law can effectively navigate the intricacies of the criminal justice system on behalf of the accused. Defense lawyers should become involved in the matter as early as possible, usually even before police interrogation begins. The police have the obligation to inform possible defendants of their right to counsel and the right to have counsel appointed by the court if they cannot afford to pay for one with their own resources. Most people have seen these warnings-often called "Miranda" warnings based on the case that made them mandatory-in television "cop" shows and crime dramas.
- Kalispell
- Lane Bennett:
If you or your loved one has been charged with driving under intoxication (DUI) or driving while intoxicated (DWI) charge, it might seem hopeless.
There are different punishments for 1st offense, 2nd offense, and 3rd offense, which are all misdemeanors. A 4th offense constitutes a felony DUI. There is a Juvenile DUI law for people under 18 -- the punishment can be as little as 30 days without a license. There is also an Under 21 DUI for people between 18 and 21. DUI is different from DUI per se, which makes it illegal to drive with a Blood Alcohol Level (BAC) over .08. The ramifications are slightly different for DUI and DUI per se, in terms of jail time and possible fines. You can refuse a breathalyzer test or a field sobriety test, however a refusal can raise certain adverse consequences as well. Any refusal for breath or blood test will lead to automatic drivers license suspension, and all convictions carry different penalties for suspension.
- Sherlock & Nardi:
Only an experienced DUI defense attorney who has had years of jury trial experience will be able to spot favorable issues and present them to a prosecutor, judge, or jury. Also, make sure your attorney has Continuing Legal Education credits from attending current DUI seminars such as those put on by the National Association of Criminal Defense Lawyers.
- Anderson Law Firm:
If a person refuses the breath test his or her license will be suspended for a
period of 6 months and revoked for a period of 1 year for a second or
subsequent refusal. For refusal a probationary license may not be obtained.
Under limited circumstances a petition may be filed with the District Court to
request return of the drivers' license.
- Missoula:
- Brian
Tipp (all counties)
- Ryan, Paul:
DUI Arraignment
You have the right to be arraigned without unnecessary delay - usually within two court days - after being arrested. You will appear before a judge who will tell you officially of the charges against you. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on personal recognizance, even if bail was previously set.
If you are charged with a misdemeanor you can plead guilty or not guilty at the arraignment. If misdemeanor charges are not dropped, a trial will be held later in the county court of law. If you are charged with a DUI felony, however, and the charges are not dismissed, the next step is a preliminary hearing.
DUI Plea Bargain
In arriving at an appropriate sentence, a sentencing hearing may be held at which evidence of aggravating or mitigating circumstances is considered. The sentence hearing is also known as the "sentencing phase," "penalty phase" and "punishment phase." In assessing the circumstances surrounding a convicted person¹s criminal behavior, state courts often rely on pre-sentence investigations by probation agencies or other designated authorities. Courts may also consider victim impact statements, particularly in sentencing defendants convicted of serious or particularly violent crimes.
Preliminary Hearing
Every person who is charged with DUI is entitled to a preliminary hearing. If a person remains in jail, he or she is entitled to a preliminary hearing usually within 10 days of arrest. If a person is released from jail on bond, he or she is entitled to a preliminary hearing usually within 30 days of arrest.
A preliminary hearing is an examination of the charge against the accused. The prosecutor must present evidence and witnesses that prove that it appears that an offense has been committed that there is probable cause to believe that the person accused committed it. The accused may cross-examine witnesses and may present evidence if he or she wishes.
If the judge makes a finding of probable cause after hearing the evidence, the charge is sent to the grand jury. If the judge does not find that it appears that an offense has been committed or that the accused is likely the person who committed an offense, the accused is discharged and the charge is dismissed. If the accused is discharged and the charge dismissed after a preliminary hearing, the prosecutor may still present evidence to the grand jury to see if they will find probable cause.
Appellate and Post Conviction
In a DUI appeal, an appellate court reviews the record of the pre-trial and trial proceedings for legal errors. The record includes the court file, the court reporter's transcript and the evidence and exhibits introduced in the trial court. In general, an appellate court does not consider information that is not contained in the record.
Sentencing
In arriving at an appropriate sentence, a sentencing hearing may be held at which evidence of aggravating or mitigating circumstances is considered. The sentence hearing is also known as the "sentencing phase," "penalty phase" and "punishment phase." In assessing the circumstances surrounding a convicted person¹s criminal behavior, state courts often rely on pre-sentence investigations by probation agencies or other designated authorities. Courts may also consider victim impact statements, particularly in sentencing defendants convicted of serious or particularly violent crimes.
Expungement Motions
An Expungement of your record results in the extraction and isolation of all records on file with any court correctional facility or law enforcement agency. The records that are expunged include complaints, warrants, arrests reports, commitments, criminal history records, fingerprints and your rap sheet.
Contrary to popular belief, your record is not automatically cleared or expunged with the passage of time. Even if you were never found guilty, an arrest is not expunged unless a court grants your Expungement petition. State statutes impose application guidelines and waiting periods for various types of arrests and convictions. The guidelines provide instruction for what can be expunged and set forth certain specific types of offenses that cannot. The guidelines also impose waiting periods that are calculated from the completion of the sentence imposed by the court.
It is important to note that an Expungement does not destroy records; it extracts and isolates the records. Under most circumstances, once an Expungement has been granted those records cannot be disclosed. A person who has been granted an Expungement can respond that he or she has no conviction when asked a question about having a criminal record. Exceptions to this rule include a person seeking a second Expungement, a person seeking a conditional discharge, and a person seeking to obtain employment in law enforcement.
License Suspension
Causes of Driving License Suspension:
€ Caught driving under the influence of intoxicants
€ Driver becomes incompetent to drive because of ill health
€ Multiple traffic offense convictions
€ Failure to report an accident
€ Failure to appear for a court hearing
€ Failure to obey a court order
€ Failure to provide proof of vehicle insurance
€ Failure to take a breath test when you are arrested for driving under the influence of intoxicants
Driving while you have a suspended license is usually a misdemeanor, which means you could be arrested and sentenced to a maximum of one year in jail and or fined up to $5,000, depending on the state in which you live.
The registration of the vehicle that was driven at the time of arrest also will be suspended for up to 120 days and the court can order the vehicle "impounded" for up to three months.
Questions/Answers
What is DUI?
DUI is shorthand for Driving Under the Influence. A person is guilty of DUI if he or she drives or is in actual physical control of a motor vehicle and is under the influence of alcoholic beverages or any chemical or controlled substance to the extent that his or her mental faculties are impaired or when his or her blood alcohol level (BAC) is above the legal limit for the state.
Is there anyway to avoid a DUI?
It sounds simple, but don`t drink and drive. Take a taxi, designate a driver, walk, call a friend, but no matter what, do not drink and drive.
Can I still be in trouble for driving, even if my BAC is below the legal limit?
Yes. It is also unlawful to drive with your normal faculties impaired. Normal faculties are those faculties of a person, such as the ability to walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, etc.
Does the car have to be moving for me to be guilty of DUI?
No. You can be arrested for DUI by driving while over the legal BAC in your state or while impaired. But, you need not actually operate the car in order to be arrested. You can still be found guilty if you had the capability and power to dominate, direct, or regulate the vehicle, regardless of whether you were exercising that capability or power at the time of the arrest. In other words, simply sitting behind the wheel with the keys in the ignition can lead to your arrest for DUI by being in actual physical control of the car.
Do I have to submit to a breath, blood, or urine test?
No. However, refusing such tests is generally not a good idea. The laws of most states permit the motor vehicle department to suspend your privilege to drive. In addition, your refusal to submit to a test upon the request of a law enforcement officer is admissible in any criminal proceeding against you as evidence of you consciousness of guilt. By accepting the privilege extended by the laws of most states to drive, the courts have determined that you have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining your BAC, and to a urine test for the purposes of detecting the presence of drugs. Therefore, when you sign your name on your license, you are saying that if stopped for a possible DUI, you will accept to take the test.
Can I fight my DUI arrest?
Yes. You may request a review of the driver`s license suspension by the department of motor vehicles within a specified number of days following your arrest. At a formal review, the hearing officer is authorized to administer oaths, examine witnesses and take testimony. If you request an informal review hearing, it shall consist solely of an examination by the department of the written materials submitted by the arresting officer, as well as anything you wish to submit. You generally cannot attend an informal hearing.
If I am arrested for a DUI, will I lose my license?
Yes, the law enforcement officer will seize your license if you are arrested for DUI with an unlawful BAC or after you refused to submit to a chemical or physical test. Your license will be seized, and the officer will issue you a traffic ticket, which acts as both a temporary driver`s license and as your notice of suspension.
How long will I lose my license?
This will vary from state to state. However, if you have refused to submit to a chemical or physical test, your license will likely be suspended for a period of one year for a first refusal, or for eighteen months if you have previously refused to submit to such a test. If you have an unlawful BAC, your driving privilege will likely be suspended for six months for a first offense, and one year for a second offense.
What else will happen to me?
Once again, this varies from state to state. But more than likely, you will be given a jail term. Most states require a mandatory one-night stay on the first offense. In addition, most second offenses within five years, results in a mandatory 30 day jail term and a third offense usually results in a sentence of no less than ninety days. Furthermore, your insurance company may discontinue its coverage or at the very least, assign you to a high-risk category, resulting in a substantial increase in your premiums.
- Martin Judnich:
A person accused of a crime in a Montana court has a right to have the case tried to a jury. That right cannot be taken away without the agreement of the Defendant, the prosecutor and the judge. However, most criminal cases are not resolved by trial. The vast majority is settled through negotiations with the prosecutor after each side has had a chance to investigative the case and resolve legal disputes at a pre-trial hearing. Whether your case goes to a trial or is resolved with a plea agreement is up to YOU and nobody else, only an accused can decide which way their case will be resolved.
- Shelby
- Aklestad Law Office:
If you have been charged with a misdemeanor or felony in Montana, you need a lawyer who is willing to go to bat for you. Being arrested does not have to mean you are going to jail. After an arrest it is very important that you secure an experienced attorney immediately before making statements or taking tests that could prejudice your case.
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