If you are ever stopped in the State of Montana and an officer thinks you may have been drinking, they will likely ask you to perform field sobriety tests before they ask you to provide a breath sample. What most people do not know, and what the officers will not tell you is that you do not have to do any tests. The Montana state Constitution gives rights to its citizens, and not performing DUI tests are included in those. Previously my blog has addressed the issue of determining whether you should submit to a breath test. But before the breath test, you will be asked to perform such tests as the Horizontal Gaze Nystagmus (HGN), one leg stand, and walk and turn tests, typically.
People often tell me that they “passed” the tests, but they are not pass/fail. The tests are designed to alert the officers to flags, or indications of intoxication. Each test has several factors that they are looking for. If you perform the tests, and they believe that you are OK, they will either let you go, or ask you for a breath test. You do have the option of refusing the field sobriety tests however. If you do that, you will be arrested for the DUI. If you are going to be arrested, they why refuse them?
If you decide to refuse all testing, from a legal perspective, there is very little actual evidence against you. Yes, you will be arrested, but there is no breath test result, and no field sobriety test results available to the prosecutor to prove you may have been a DUI. You are innocent until proven guilty, and if you exercise these rights, it may be very difficult for the State to prove your guilt.
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.