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Frequently Asked Questions about DUI in Montana

What is the Difference between “Driving Under the Influence” and “Driving with Excessive Alcohol Concentration”?

Although the differences are subtle, they have an influential impact on the type of punishment that an individual might receive. The basic difference comes down to the ability of the state to provide an accurate reading of a person’s alcohol concentration. “Driving with Excessive Alcohol Concentration” provides harsher punishment than “Driving Under the Influence.” Generally, a person who can be charged with “Driving with Excessive Alcohol Concentration” can also be charged with “Driving Under the Influence.”   An important note to remember is a person can be charged with both “Driving with Excessive Alcohol Concentration” and “Driving Under the Influence” from one incident, but can only be convicted of one or the other.

What are Open Container Laws?

In addition to the traditional DUI related offenses establishes in Montana, the state has also enacted an “Open Container” offense. In order to be found in violation of the “Open Container” offense, an individual must:

  1. knowingly possess
  2. an open alcoholic beverage container; AND
  3. it must be within the passenger area of a motor vehicle on a highway

For the purpose of the offense (and this offense only) an “alcoholic beverage” means a drink that contains 0.5% or more of alcohol per volume, and “open alcoholic beverage container” means a bottle, can, jar, or container which holds any amount of an alcoholic beverage.

A person who violates the “open container” law shall be fined an amount not to exceed $100. However, it is important to know that a violation of this offense is NOT considered a criminal offense.

Can a DUI be expunged in Montana?

NO. In 1989, the expungment provision of the Montana “Driving Under the Influence” penalty law was repealed and removed the ability for an individual in the state of Montana to expunge his or her “Driving Under the Influence” charge.

For convictions that occurred after the change in the law, the state has the ability to use those against the individual for the purpose of sentencing.

Can I be stopped and arrested for DUI even if the vehicle was not moving?

Yes. The law does require not only that a person be operating the vehicle, but also if a person has “actual physical control” over the vehicle. Case law has shown that individuals who are in a parked car with the ignition running are in actual physical control of the vehicle and are subject to all DUI related laws.

Do I have the right to talk to an attorney before I give a sample?

No. Based on the statutory interpretation, a person is not given the right to consult with a lawyer before giving a sample for a police officer. Under the law, the request to give testing is not a “custodial interrogation” and therefore does not entitle a person to representation. However, a person is not obligated to give the test, but will face penalties for denying an officer-requested test.

Do I have to give a blood or urine sample?

No. As stated above, though a driver has statutorily given his or her “implied consent” to these tests, an individual still has the right to refuse both a blood and breathalyzer test. However, that person is then subject to the penalties associated with denying a request for a sample.

Do I have to submit to a field sobriety test?

No.  Case law has grouped the field sobriety test with the same right of refusal found with blood and breath test refusals. Case law has also included that the refusal of a field sobriety test can be used against a person as evidence in court. The refusal of a field sobriety test would likely be used against that individual the same way a refusal to submit to a blood and breathalyzer test would.


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