Chemical Testing in Montana
As discussed below, a person is considered to give implied consent to chemical testing in order to determine whether an individual is under the influence of drugs or alcohol. The tests referred to by law in Montana are alcohol concentration tests measuring an individual’s blood and breath (commonly known as a breathalyzer test). These tests measure the breath or the blood of an individual and calculate the amount of alcohol consumed. The concentration is measure by grams of alcohol per 100 milliliters of blood, or grams of alcohol per 210 liters of breath. Any test must be administered by a police officer when one of the following is true:
- The officer has reasonable grounds to believe the person has been in actual physical control of a vehicle while under the influence of drugs or alcohol;
- The person is under the age of 21 and has been arrested; OR
- The person is involved in an accident that resulted in serious bodily injury or property damage and the officer has a reasonable believe that the person is in violation of a DUI related offense;
Requirements of Chemical Testing
The state is very specific in the types of tests that are admissible for determining an individual’s alcohol concentration. The first and most common is the preliminary screening of the person’s breath for alcohol concentration. The officer must have a “particularized suspicion” that the individual has committed a DUI related offense in order to have a reasonable expectation to request the breathalyzer test. The officer conducting the test and the instrument used in conducting the test must be certified by the appropriate department. The submission to a breathalyzer test does not satisfy an individual’s implied consent to testing, and an officer has the right to request that a person’s blood be tested to determine his or her alcohol concentration as well.
The state is also very specific in the admission of blood testing to determine alcohol concentration, and the individuals who are eligible to conduct those tests. Only a physician, registered nurse, or a qualified person acting under the supervision of a physician or registered nurse may withdraw blood for the purpose of determining a person’s alcohol concentration (these standards are NOT the same for breathalyzer tests). Case law has also established that a physical or registered nurse does not have to be in the physical presence of a qualified person drawing the blood. Offsite or on-call supervision by a physician or registered nurse is sufficient to meet the Montana requirement. The individuals conducting the test cannot be held liable for the proper admission of the officer-requited test.
An important note: A person has the right to request that an additional and independent test be conducted by a physician or registered nurse for the purposes of determining the individual’s alcohol concentration. A police officer may not stand in an individual’s way when requesting the independent testing, but is not required to transport that individual to the location of that testing. The failure of an individual to receive that independent testing does not preclude the tests taken at the request of the officer from being admissible. All information concerning the testing must be made available to the individual being tested.
Refusal to Submit to Chemical Testing
A person has a right to refuse to submit to any officer-requested test. However, the refusal of any requested test will result in the immediate revocation and suspension of the individual’s license for a set period of time, depending on the individual’s previous refusals. The following is the penalty for refusal of individuals 21 years and older driving noncommercial vehicles:
- Suspension of driver’s license for 6 months.
Second or Subsequent Refusal within 5 years of First Refusal
- Suspension of Driver’s license for 1 year.
An out-of-state driver who refuses to submit to an officer-requested testing is bound by the same laws as in-state individuals. However, officers are ordered to send the revoked license to the appropriate state department of the non-residence’s home state, and send a report of the individual’s refusal to submit to testing.
Appealing Suspended Licenses
An individual who refuses to submit to a chemical test ordered by an officer, and subsequently has his or her license revoked and suspended, is eligible to appeal that suspension. Within 30 days of receiving the notice of suspension, the individual may file notice with the court where the arrest occurs and work to get his or her license reinstated. A hearing will be conducted by the court, and will be limited in scope to the circumstances surrounding the arrest and whether there were reasonable grounds for the officer to request the chemical test. Based on the testimony, the court shall determine whether the individual should regain title of his or her license.
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