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DUI Legal Process in Montana

The criminal justice system can sometimes be cast off as long and complicated. However, it is important to realize that the purpose of the system is to benefit you. The process is created to not only make sure your rights are granted throughout the entire process, but to also give you knowledge about what exactly your rights are. The following is a general account of how “Driving with Excessive Alcohol Concentration,” “Driving Under the Influence,” or any other DUI related misdemeanor or felony conviction are handled from the moment of the act to the end of the judicial system. It is important to note that many parts of this procedure may be altered depending on a large list of other factors that might affect the crime charged, or the system followed. Juveniles, for instance, follow a separate adjudicative process not like the one listed below. It is best to contact an attorney to get a more detailed account about how your specific trial will be handled, as it may deviate slightly from this section.

The Action and Arrest

“Driving with Excessive Alcohol Concentration” or “Driving Under the Influence” are crimes that are more likely to be caught during the actual act. With that understanding, it is likely that no warrant will be issued by a court requesting the arrest of the individual. Therefore, an arresting office will likely need “probable cause” that a person is committing an offense or that the person has committed an offense, and the circumstances require that the officer make an arrest. In laymen’s terms, a police officer must have a reasonable suspicion that a person has met the required elements of a crime.  For DUI crimes, this normally means the officer pulls an individual over for erratic driving, and has cause to believe the person has been drinking (i.e. slurred speech or smell of alcohol). Generally, an arresting officer is required to inform the person of the officer’s authority to arrest, the intention of the officer to arrest that person, and of the cause for the officer to make the arrest.

Initial Appearance

Once a person is arrested, the individual must be taken before a judge for what’s called an “initial appearance.” This may be a physical appearance before the court, or may be done by the use of two-way video communication. The purpose of the initial hearing is to inform the individual of the following:

  1. The charge;
  2. The individual’s right to counsel;
  3. The individual’s right to refuse to make a statement;
  4. The fact that any statement made by the individual may be offered in evidence at the individual’s trial; AND
  5. Any other relevant information determined by the court.

In addition, bond can be set by the court, or the court can choose to release the individual on his or her own recognizance. The purpose of the bond is to allow the release of the individual with reasonable conditions that make sure that the individual will appear for subsequent court appearances and to maintain the safety of the community or of any other person.

Preliminary Hearing

While the initial appearance is set to allow an individual to understand the charges against him or her, the preliminary hearing is for the court to hear the evidence to determine if there is probable cause that the crime was committed and it was done by the defendant. A preliminary hearing would be required if the individual’s action meet the requirements of a felony offense based on the circumstances described above. At the preliminary hearing, the evidence is presented by the state, and the evidence may be cross examined by the individual. As described above, the felony charge for DUI related crimes is based on prior acts by the individual. That means that the individual would have to show that, in addition to not meeting the elements of the assumed action, the requirements to impose a felony offense are not met by the state either. The defendant also has the right to introduce his or her own evidence. If it appears that the evidence does not meet the probable cause necessary to believe that a felony offense has been committed or that the individual was the one who committed the offense, the judge shall dismiss the complaint and discharge the individual.

The Charge

If a preliminary hearing is necessary and successful, the state will then file the formal charges against the defendant. If the assumed offense is a misdemeanor (which is normally the case) then no preliminary hearing would be necessary and the state may charge the defendant for the DUI related misdemeanor offense if it so chooses. The prosecutor must file an “information” within 30 days in the proper district court charging the defendant with the offense.


An individual has been made aware of the charges, a preliminary hearing has been conducted if needed, and the state has decided to proceed with the evidence it has to charge the individual with a DUI related crime. Then, the individual appears before the court where there is the reading of the formal charge(s) and where the individual is asked to plead to the charge(s). Prior to a formal plea, the court will again inform the individual of, among other things,  the nature of the charge, the minimum and maximum sentence of the charge, and the right of the defendant to plead not guilty.

Plea Deal

The prosecutor and the attorney for the individual, or the individual when they are representing themselves (knowing as “pro se” or “self-represented litigants”) may discuss the possibility of reaching an agreement that will have the prosecutor dismiss some of the charges and/or agree to a specific sentence in exchange for the defendant to enter a plea of guilty or no contest. Normally, but not definitely, a person may see a charge dropped from a felony to a misdemeanor, or multiple charges being dropped to a single charge to lessen the sentence.  However, a court is not obligated to accept a plea deal, and has discretion in accepting or denying the prosecution’s recommendation.

Pre-Trial Motions and Notice

If no plea deal is offered, the deal is not accepted by the individual, or the deal is rejected by the court, the individual will then prepare for trial for his or her DUI charge. Prior to the trial, an individual has the right to file any pre-trial motions that can affect the nature of the trial. Pre-trial motions and notices set the stage for things like what evidence can and cannot be entered, the scope of statements being made by witnesses, and a host of other motions that can be made on the state or individual’s behalf.

The Trial

When all is said and done, the individual will stand trial, where the state will be required to prove beyond a reasonable doubt that all of the elements of the charge or charges have been met. At the trial, the state and the defendant have the right for opening and closing statements, the right to present evidence, and the right to cross-examine that evidence. The parties in a misdemeanor case are entitled to a jury of six people, or if they so choose, a trial by jury may be waived and the individual may have a hearing in front of a judge only.

The Verdict and Sentencing

Once the trial has concluded, the jury shall return a verdict as instructed by the court. The verdict must be unanimous. If a verdict of not guilty is returned then the defendant is free to go. It is at this point that the judge (if the individual is found guilty) will indicate the appropriate sentence, whether that is jail time, fines, or any of the other statutorily allowed sentences (See above for a further look at possible punishments for “Driving with Excessive Alcohol Concentration” and “Driving Under the Influence”).

The Appeal

Should the defendant feel that an error occurred that resulted in the individual’s conviction, the individual has a right to file an appeal. An appeal may be taken by the defendant only from a final judgment of conviction or an order after judgment that substantially affects the rights of the individual. Although an obvious error might have occurred during trial, the judgment of the trial court is to continue until an order to reverse is formally issued by an appellate court.

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