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Kalispell DWI Lawyers

1. McKeon Doud: Personal Injury Medical Malpractice Insurance Disputes Contract Law Construction Law DUI Defense
2. Sullivan, Paul: 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 officerÕs 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 dick 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, driverÕs 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 Òcustodial interrogationÓ 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. DonÕt 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 doesnÕt mean helping the officer make a case against you.
3. 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.
   1. There are different punishments for 1st offense, 2nd offense, and 3rd offense, which are all misdemeanors.
   2. A 4th offense constitutes a felony DUI. 
   3. There is a Juvenile DUI law for people under 18 -- the punishment can be as little as 30 days without a license.
   4. There is also an Under 21 DUI for people between 18 and 21.
   5. 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.
   6. You can refuse a breathalyzer test or a field sobriety test, however a refusal can raise certain adverse consequences as well.
   7. Any refusal for breath or blood test will lead to automatic drivers license suspension, and all convictions carry different penalties for suspension.
4. 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. How To Avoid A DUI Obviously, not drinking and driving is the best way to avoid a DUI. However, in our society, social drinking is something many of us are accustomed to. Even if you have had just one drink, you could be stopped if the officer has probable cause to believe that you have violated the law or committed some sort of traffic infraction. To avoid being stopped or convicted of a DUI, consider the following: 1. DRINK AT HOME 2. LEARN YOUR LIMIT If your blood alcohol is over .08, you should not drive. (See How to Calculate Blood Alcohol Content.) Arrange for a designated driver, take a taxi, or walk home. 3. KEEP VERIFIABLE LIST OF THE NUMBER OF DRINKS YOU HAVE CONSUMED -- including all bills and receipts from bars and restaurants. As a regular course, this may assist you in the event you are arrested and you are able to verify that you only consumed a certain number of drinks and under the alcohol chart you could not possibly have been under the influence. 4. PURCHASE A PORTABLE BREATH MACHINE to determine if you have had too much to drink. If it determines that you are over the limit, you need to take a taxi or have someone else drive. Always use taxis or designated drivers after you have been drinking. 5. DO NOT VIOLATE ANY TRAFFIC LAW OR CUSTOM, SUCH AS: * Driving with headlights off at night, or defective tail lights or headlights * Accelerating or decelerating rapidly * Turning abruptly or illegally or failing to utilize turn signal * Driving slower than 10 m.p.h. * Responding slowly to traffic signals * Driving into or crossing traffic * Stopping inappropriately or erratic application of brakes * Driving with one or more tires across the center lane or lane markers * Drifting over the center lane or fog line * Following too closely * Expired plates or improper registration * Swerving --driving other than on a designated highway, weaving, almost striking an object or another vehicle, turning in a wide radius, or turning into an oncoming lane of traffic after executing a right or left turn. 6. IF STOPPED, BECAUSE YOU FORGOT #5 ABOVE: have your driver's license, registration, and insurance papers ready. Do not fumble for your license after the officer is at your window with his flashlight. Also, see "Exercise Your Rights." 7. DO NOT TALK TOO MUCH OR VOLUNTEER INFORMATION: this will be used against you, like "Yes. I'm drunk" or "I have had 10 beers and 3 shots." 8. DO NOT PERFORM FIELD SOBRIETY TESTS --you will not be able to do them and this will be evidence against you. 9. PORTABLE BREATH TEST -- In Montana, a refusal to take the portable or other breath tests will result in the suspension of your license for 6 months on a first refusal and 1 year on a second or subsequent refusal; THEREFORE, we recommend taking the breath tests and requesting a separate blood test at your expense. If you refuse to take a BAC test and your license is suspended, you have 30 days in Montana to petition the District Court for return of your license. You will need an experienced lawyer to do this. We only recommend refusing the BAC test if you know you are over .20% BAC, very drunk, or you can live with not driving for 6 months on a first refusal. 10. COOPERATE WITH THE OFFICER --while not volunteering information. 11. KEEP A LIST OF WITNESSES --as soon as you are released from jail, contact someone immediately so that they can speak to you and note your state of sobriety. Also make a list of witnesses, i.e. people that you were with the day that you were stopped so they can give a statement to your attorney and verify that you were not intoxicated or that you had only consumed a certain number of drinks. 12. ALWAYS PLEAD NOT GUILTY and immediately consult with an experienced criminal defense attorney. Patrick D. Sherlock has handled hundreds of DUI cases and has a superb reputation in Western Montana. In fact, other attorneys refer their difficult cases to him. 13. RETAIN AN EXPERIENCED DUI ATTORNEY TO REPRESENT YOU 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. TOP Exercise Your Rights Under most circumstances, you won't be able to talk your way out being arrested if you have been stopped for drunk driving or any other criminal conduct. Do not volunteer any information, especially if you are completely innocent. No matter what an officer may say, he/she is not on your side. Remember, anything you say can and will be used against you later, even if the police, detectives, or highway patrolman appear to be merely asking administrative or friendly questions. Inform the officer that you would like to speak with your attorney and do not volunteer any other information. Do not answer questions, even if they seem harmless, such as: "Are you on any medications?" "Were you driving?" "Have you been drinking?" Whatever you say or do will most likely be recorded by video tape or a tape recorder on the officer's person. If you are asked to perform any field sobriety maneuvers, politely refuse and again, remain silent. Field Sobriety tests are completely voluntary and you may be arrested regardless of whether you perform them or not. You may politely refuse to perform field sobriety tests both at the location of your stop or later at the station. There may be many reasons that you do not want to take these tests, including illness, old age, fatigue, injuries (such as from football, yard work, or past surgeries). No matter how well you perform the field sobriety tests, the officer will usually find some little nit-picking thing you did wrong and try to use it against you later. There is no sense in "helping" them convict you so don't take the field sobriety tests unless you have had less than one drink. In the event the officer requests a breath test, keep in mind that your refusal of the breath test at the scene or later at the station could cause your license to be revoked. In Montana, on a first refusal your license could be revoked for six months or up to one year on a second refusal. If you are a truck driver or earn your living from driving, you may very well want to take the breath test and suffer the consequences of the results simply because failing to take the test would cause your license to be suspended or revoked and you could lose your job. Further, a good lawyer may be able to get your case dropped or plea bargained, even if you take the test and blow over a .08. You may also demand to be taken to a hospital for an independent blood test, which will be at your expense. An officer in Montana does have the right to determine which test or tests you may have to take, so the blood test would be an independent test at your own expense and may in fact contradict the test conducted by the police or sheriff's officer. Always be polite and respectful to police officers, highway patrolmen, and sheriff's deputies. Your demeanor is very important in determining whether or not you are intoxicated. If you appear very mad and upset on the video tape, this will not help your case in Court. Rather, you should appear calm, in control, and not agitated. As a regular course, law enforcement in Montana video tapes the arrest, breath testing, and/or booking process. Always be on your best behavior as there is most likely a camera on you from the minute you are stopped until you are actually placed into a jail cell after booking. Should I Take the Breath Test If you are stopped and the officer suspects that you are driving under the influence, you may be asked to take a breath test at the scene with a portable breath test (PBT) or at the station with an Intoxilyzer 5000. You have the right to refuse these tests, but if you do your license will be suspended for 6 months with no exceptions. You will not be entitled to obtain a work permit or other temporary or probationary license. Taking the breath test is solely your decision, however you should be advised that if you are a truck driver, for example and you refuse to take the breath test you will be suspended and most likely lose your job. Accordingly, under most circumstances we would recommend that our clients take the breath test. Even if you fail the breath test you will not lose your license and will be eligible to drive even if convicted of a DUI by obtaining a provisionary license. Our experience has shown that even if you fail the breath test you may be successful in your DUI case for some other reason based on our experience and expertise. How to Calculate Blood Alcohol Content The following chart is to be used for estimation purposes only and does not take into account other individual factors such as your metabolism, age, how much you had to eat before consuming alcohol, and items such as medications, lack of sleep, etcetera. Please do not attempt to use this chart as an "accurate" guide. In Montana, if your blood alcohol exceeds .08 you could be charged with Driving While Under the Influence, or DUI Per Se. To estimate your blood alcohol using the chart, first locate your body weight and then the number of drinks you have consumed. One drink equals 1 oz. of 100 proof liquor, or 1 five oz. glass of table wine, or 1 twelve ounce bottle of regular beer. Light beer has the same alcohol content as regular beer. Second, subtract from the number you determine the percentage of alcohol burned up during the time elapsed since your first drink. Normally, a 180 lb. man would burn off approximately .015 percent per hour. Interestingly enough, many alcohol experts feel that a 180 lb. person would burn off approximately 1 drink per hour under normal circumstances. This means that if you have 3 drinks in 3 hours you should be under the alcohol limit, regardless of your weight.
5. Anderson & Bliven: 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. Criminal Law 1. The Process What happens after a person is arrested? In most cases after arrest the person arrested is usually provided an opportunity to post bail. Bail may be in the form of cash or bail bond. After the appropriate amount of bail is posted then the person will be released but required to appear in Court usually within 48 hours. At this first appearance the Court will conduct an Arraignment. What is an Arraignment? An arraignment is the initial appearance in Court. At this time the Court advises the person of the nature of the charges, the sentence which may be imposed and of several rights afforded under Montana Law. After advising the person, he/she will be asked to enter a plea of guilty or not guilty. If a plea of guilty is entered the Court will proceed to sentencing. If a plea of not guilty is entered the case is usually set for trial. After advising the person, he/she will be asked to enter a plea of guilty or not guilty. If a plea of guilty is entered the Court will proceed to sentencing. If a plea of not guilty is entered the case is usually set for trial. How should a person plead at an arraignment? Generally, one should plead not guilty and request a jury trial, at this initial stage so that he/she can contact an attorney to investigate the matter. Even if a person believes he/she is guilty the law permits the person to enter a not guilty plea. The plea may always be changed later pursuant to a negotiated plea agreement. What happens after arraignment? Usually the matter is set for trial. If you hire an attorney he/she may file motions with the Court and pretrial hearings may be set. Your attorney may also negotiate a plea agreement with the prosecution which would resolve the matter without the requirement of a trial. Do I need an attorney? If you are charged with a crime serious enough to warrant arrest and possible incarceration you should contact an attorney. You should contact an attorney as soon as possible. The criminal process is far to serious and complicated to navigate without the assistance of an attorney. Further in this page, information is provided on how to obtain an attorney if you can not afford and attorney. Even if a person is guilty, an attorney can negotiate for a plea agreement which may reduce the charges or punishment that would be imposed. 2. Important Constitutional and Legal Rights: In the area of criminal law there are several very important constitutional rights. The criminally accused is afforded these rights because of the serious consequences that may result, namely incarceration. Under the Federal and Montana Constitutions a criminally accused is presumed innocent until proven guilty beyond a reasonable doubt. What is the right to remain silent? The 5th Amendment of the Constitution provides that no person shall be compelled in a criminal case to be a witness against himself. As a result police are required to advise a suspect of his/her right to remain silent and the right to have an attorney present during any questioning. If a suspect asks to remain silent or for an attorney prior to questioning no further questioning may take place. Does an accused have the right to representation by an attorney? Yes, The U.S. and Montana Constitutions provide that the accused shall enjoy the right to have the assistance of counsel. If you can not afford an attorney the Court must appoint an attorney who will be paid for by the Court. If you can afford an attorney you may retain an attorney or waive your right to an attorney. What is an unreasonable search and seizure? Both the Montana and Federal Constitutions prohibit unreasonable searches and seizures. Both mandate that the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. The Montana Constitution also includes a right to privacy. It provides that the right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interests. What happens if my rights are violated? Your attorney will usually file a motion with the Court to dismiss the case or deny the prosecution the opportunity to use evidence which was unlawfully obtained. Preparing and filing such a motion could be very important to either obtaining a dismissal or plea agreement in your case. There are many more important statutory and Constitutional Rights. You should contact an attorney to obtain specific advice about your case. 3. DUI Law: This is the area of criminal which is very complicated. DUI Laws in Montana are incredibly complex and this complexity often results in reduction or dismissal of these charges. The following is a list of common questions: Should a person take the Breath Test? Yes, under Montana Law a person is considered to have given consent to taking the breath test upon the request of a peace officer. The law also allows a person to refuse. A person who refuses the test will have his or her drivers license suspended or revoked for a period of not less than 6 months. If a person does not believe that he or she is under the influence of alcohol than generally he/she should take the test. A breath test below or near .10 will likely result in dismissal or reduced charges. If a person believes that he or she is under the influence of alcohol but cannot afford to lose his or her drivers license they should still take the test. Can I ask for a blood test or another confirmatory test? Yes, Montana Law and the Montana Constitution both require that a DUI suspect be provided with the opportunity to obtain an independent test for alcohol or drugs at his or her own expense. An independent test helps assure the accuracy of the offered test. If after requesting an independent test one is not provided then the case may be dismissed by the Court. Can I get my drivers license back if it is suspended for DUI? Maybe, it depends upon the circumstances. Refusal: 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. DUI Conviction: For a first DUI conviction a persons' drivers' license will be suspended for a period of 6 months and revoked for a period of 1 year for a second or subsequent conviction. This time is in addition to any applicable suspension for a refusal. An essential driving or probationary permit may be issued if all of the following requirements are met: 1. Pay $100.00 reinstatement fee to DMV. 2. Obtain Judges recommendation for probationary license. 3. Enroll in the ACT Program 4. Pay fees, take driver test if no license or license is expired.