One of the most frequent questions I’m asked as a DUI defense attorney in Missoula, Montana is: “If I’m arrested for DUI and refuse a breath test, can I get a probationary license?”
Today, I’ll answer this commonly-asked question, and help you understand your rights as they pertain to DUI convictions, arrests, breath tests, and more.
Implied Consent & Breath Test Refusal Suspension
The state of Montana has what are known as “implied consent laws.” In most situations, you must actively give consent (to a search, for example). But under implied consent laws, your consent is granted by your actions in a particular situation. In other words, instead of granting explicit consent, you give implied consent.
As the driver of a motor vehicle in Montana, you give your implied consent to a breath or blood alcohol test if asked by a law enforcement officer. If you refuse, your driver’s license will be automatically suspended– simply for your refusal, whether you’re guilty of driving under the influence or not.
This refusal suspension lasts for 6 months and begins on the day you refused a breath or blood alcohol test. However you are given a 5-day driving permit which will allow you to drive while you prepare for your 6-month suspension.
It’s important to note that this refusal suspension, as it is known, has absolutely nothing to do with any criminal DUI charge. A refusal suspension is civil in nature (as opposed to criminal, like DUI charges). It is not dependent on or related to the outcome of the DUI arrest.
In other words, even if your DUI case is resolved without a DUI conviction or trial, or you are acquitted of wrongdoing at trial, the refusal suspension still remains for the full 6 months.
DUI Convictions & Refusal Suspensions
If you are convicted of a DUI, you’ll receive a second suspension of your license, completely independent of any breath test refusal suspension.
Having your license suspended as part of a DUI conviction is a criminal penalty whereas a refusal suspension is a civil penalty.
If you’re a first-time DUI offender, you are eligible for a probationary license after being convicted. However, if you’ve been convicted of multiple DUIs you can’t get a probationary license.
A DUI criminal suspension is an addition to any refusal suspension, so these suspensions can (and often do) start at different times. This means that well after 6 months from a DUI arrest, your license may still be suspended due to a DUI conviction.
Without a great DUI defense attorney like those at the Judnich Law Office, you may find yourself in a situation where you don’t fully understand your license suspension, leading to more problems down the road. We can help you straighten your situation out!
What is a Probationary License?
A probationary license will allow you to drive for certain, pre-approved purposes. These may include trips to and from school or your place of work, as well as visits to doctors or other medical treatments and day to day activities.
Probationary licenses are for necessary and approved trips only. They are not licenses to drive whenever and wherever you want.
Can I Receive a Probationary License After a Refusal Suspension?
If your driver’s license has been suspended for refusing a breath or blood test, you are not eligible for a probationary license.
The only way to challenge a breath test refusal suspension is to file a civil petition in District Court challenging the refusal suspension. Only private attorneys can file these petitions for you. Public defenders are prohibited from filing civil petitions because they are not part of a criminal defense case.
In other words, if you want to challenge your refusal suspension, you need a private attorney. And you must file the petition within 30 days of refusing a breath or blood test.
The only way to reinstate your driver’s license after refusing a blood or breath test is to win your petition or if an agreement is negotiated with the prosecutor to return your license.
If your petition fails, you will be required serve your entire 6-month refusal sentence. There’s no way around it.
Contact Us to Learn More About Your Rights
Refusal suspensions are a complicated area of DUI law and many people simply do not understand it well.
If you are accused of a DUI and have suffered a refusal suspension you should contact our office today to discuss your situation free of charge. We’ll help you determine if you should hire one of our premier DUI defense attorneys to help you with your DUI case and license issues.
Call the Judnich Law Office today at (406) 721-3354.
Photo Credits: Beth Cortez-Neavel
Marty is a former criminal prosecutor in the Cascade County Attorney’s Office and now uses that experience to defend those accused of crimes. A University of Montana School of Law graduate, Marty focuses his practice on personal injury and criminal defense and is a premier DUI defense attorney. He is also well versed in the insurance claims industry and has negotiated significant settlements with nearly every major insurance company.