In Montana, a person is guilty of DUI if he or she is driving while under the influence of (1) a dangerous drug, (2) any other drug, OR (3) alcohol and any dangerous or other drug. Mont. Code Ann. §§61-8-401(1)(b)-(d) (West 2009).
In Montana, it is a crime to operate a motor vehicle with 5ng/ml or more THC in blood. This prohibition applies to both patients and non-patients alike. The law took effect on October 1, 2013.
Implied Consent
- A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a test or tests of the person’s blood or breath for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person’s body. Id. § 61-8-402(1).
- If an arrested person refuses to submit to one or more tests requested and designated by the officer, the refused test or tests may not be given, but the officer shall, on behalf of the department, immediately seize the person’s driver’s license. Id. § 61-8-402(2).
- Upon a first refusal, a suspension of 6 months with no provision for a restricted probationary license; upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the department, a suspension of 1 year with no provision for a restricted probationary license. Id. § 61-8-402(6).
- If the person under arrest refuses to submit to one or more tests as provided in this section, proof of refusal is admissible in any criminal action or proceeding arising out of acts alleged to have been committed. The trier of fact may infer from the refusal that the person was under the influence. The inference is rebuttable. Id. § 61-8-404(2).
Penalties
- First offense – imprisonment for not less than 24 hours, nor more than 6 months; fine of not less than $300, nor more than $1,000; first 24 hours of imprisonment must be served Id. § 61-8-714(1).
NOTE: If any passenger(s) in the vehicle are under 16 years of age, person convicted will be punished by imprisonment not less than 48 consecutive hours, nor more than 12 months; and fined not less than $600, nor more than $2,000. Id. § 61-8-714(1). - Second offense – imprisoned not less than 7 days, nor more than 6 months, and fined not less than $600, nor more than $1,000; first 48 hours of imprisonment must be served consecutively; vehicle may be subject to seizure. Id. § 61-8-714(2); Id. § 61-8-442(2)(b).
NOTE: If any passenger(s) in the vehicle are under 16 years of age, person convicted will be punished by imprisonment for not less than 14 days, nor more than 12 months; and fined not less than $1,200, nor more than $2,000. Id. § 61-8-714(2). - Third offense – imprisoned not less than 30 days, nor more than 1 year; fine of not less than $1000, nor more than $5,000; first 48 hours of imprisonment must be served and served consecutively. Id. §6 1-8-714(3).
NOTE: If any passenger(s) in the vehicle are under 16 years of age, person convicted will be punished by imprisonment for not less than 60 days, nor more than 12 months; and fined not less than $2,000, nor more than $10,000. Id.
Other Penalties & Penalty Enhancers
- Completion of a chemical dependency treatment program may be required. Id. § 61-8-714(1).
- Once convicted, offender may be restricted to driving only a motor vehicle equipped with a functioning ignition interlock deviceduring the probationary period. Id. § 61-8-442(1).
Sobriety Checkpoints
In Montana, checkpoints are authorized by statute.
- Checkpoints are conducted under the authority of a statute which allows ‘safety spot checks,’ although statute makes no specific reference to sobriety checkpoints. Id. § 46-5-501.
Case Law
State v. Hilgendorf, 2009 MT 158 2009) – Officer had probable cause to stop vehicle based on vehicle’s abrupt takeoff as officer approached and fact that occupants were moving around inside as if they were trying to conceal something.
State v. Nobach, 46 P.3d 618 (2002) — Arresting officer must be sufficiently knowledgeable about effects of drug consumption on person’s ability to drive safely in order to offer testimony.
Foreman v. Minnie, 211 Mont. 441 (1984) — Court found that drug paraphernalia that was found in the vehicle tends to show defendant was actively consuming controlled substances within a few days of the accident.