So, you or someone you care about has been arrested for DUI and has never dealt with the criminal justice system before. This is a challenging, confusing, and intimidating time full of questions. So here are some of the necessary things to know following a first DUI arrest in Montana.
Don’t give a statement to the police
Rule #1 is to not provide the government with more evidence against you.
You will not talk your way out of anything.
Once you have been arrested, don’t give a statement to anyone without your lawyer being present and the lawyer agreeing to such an interview for some reason. Often people want to try to help themselves out by making statements and trying to talk their way out of something.
That doesn’t work.
All you are doing is giving the government the opportunity to twist your words into something they can use against you. Don’t do that.
Don’t give a blood sample or consent to a Breathalyzer test
Let’s call this Rule #1A.
Do not voluntarily give the government a breath or blood test. If you have already been pulled over for DUI, they already have a strong suspicion that they are going to arrest you for DUI no matter what happens. By the time you’re asked to take a breath or blood test, you have already performed field sobriety tests, and the officer is looking for confirmation that your BAC is above .08%, or that you have drugs in your system.
It is exceptionally rare for someone to take a breath test and then have the officer just let them go. If you do happen to take a breath test and pass, the officer likely suspects that there are drugs in your system and will then request a blood test.
The government already thinks you are guilty, so don’t give them any evidence they can use against you.
By refusing to provide a breath or blood test, you do lose your license for 6 months. However, you are not giving the government a numerical readout of the alcohol and/or drug concentrations in your blood or breath. A premier DUI defense attorney will universally prefer a refusal case to defend over a case where a test has been given.
Do yourself a favor. Don’t provide the government with a breath or blood test that can sink your chances at a trial. But remember skilled lawyers like those at the Judnich Law Office can help you challenge a blood test.
Bonding out of jail
Following an arrest, you’ll be transported to the Detention Center and booked.
This usually means your photo is taken, you are fingerprinted and either released at that time, or you are put in an orange suit until such time you can post bail. Almost all DUI arrests will have a bond you can post to get out of jail right away.
You can accomplish this by either paying cash for the entire bond – and get that money back at the end of the case. Alternatively, you can hire a bondsman who will pay the bond for you, and you pay them a fee for that service.
Once a bond is posted, you will get out of jail. Ensure you have a ride or some way of getting home once you are released. After a DUI arrest, your car has likely been towed from where you were arrested, so you will have to make arrangements to pay for the tow and storage fee to get your car released.
Rules of bail
After you have posted bond, the court will impose rules you must follow while you are released. If you violate any of the rules, they will revoke your bond, and you will go back to jail. These rules usually consist of basic things like obeying all laws. However, DUI offenses often can include no possession or consumption of alcohol for any reason, the imposition of alcohol monitoring by a breath test or dermal patch, restrictions on travel, and more.
It is not wise to drink any alcohol after you have been arrested. Judges do not look favorably upon someone ordered to not drink after a DUI arrest, who then tests positive for alcohol.
Be smart, and obey the rules of your release.
If you bailed out of jail before ever seeing a judge, you will be ordered to see a judge no later than a specific date. This is called your initial appearance or arraignment.
This can be a very intimidating time.
If you have never appeared before a judge before, the initial appearance is where the charges and potential penalties are read to you in open court. This is also where you enter your initial plea of guilty or not guilty.
It is important, but not vital, to have spoken to an attorney before this court appearance. An attorney can help walk you through this process and good things can happen at this appearance like lowering your bail amount and changing the conditions of bail that were previously discussed.
Entering a plea of Not Guilty is important here. If you plead Guilty, that’s it – the judge will sentence you and you will not get an opportunity to review the evidence or challenge anything. You’ll just get sentenced and get a DUI on your record forever.
By entering a Not Guilty plea, you allow the process to begin and your case will be assigned a judge, prosecutor, and case number. Once you plead Not Guilty, the judge will go over your bail conditions and set future dates down the road for you to appear in court again.
In Montana, the next court date is for your Omnibus Hearing. Pleading Not Guilty is not the same thing as saying you didn’t do it. Pleading Not Guilty is the legal mechanism by which we can challenge a case, review evidence, and negotiate with a prosecutor, so it is the only reasonable thing to do.
The next hearing is your Omnibus Hearing. Don’t worry about the fancy name, this is just a scheduling hearing, but you usually do have to appear before the court at this hearing.
This is usually several weeks after your initial appearance. By this date, your attorney should have received all the evidence from the prosecutor so you know the strengths and weaknesses of the Government’s prosecution case.
You appear before the court at this hearing and your attorney tells the court if any motions are going to be filed and a schedule of how the case is going to proceed is formed by all sides. Usually, a case is not resolved by this hearing. It would be rare for a prosecutor to fully review and evaluate a case by this hearing date. Most often cases are successfully resolved after this hearing date.
Final hearing and trial date
After the Omnibus Hearing, there is usually a pretty long wait until the next court hearing. This is because this is the time that the government and your attorney are negotiating, researching, and filing legal briefs that need to be ruled on, and preparing your case to either accept a plea agreement or go to trial.
The court usually has at least one “status” type of hearing prior to a trial to ensure the case is either getting resolved or it is going to trial. Judges hate scheduling a trial and then calling it off because the parties came to a last-minute resolution to the case. However, that happens all the time. Attorneys are usually procrastinators and many things happen at the last minute.
If a case is not resolved via plea agreement, then the case must go to trial.
A plea agreement is an agreement between the defendant and the prosecutor. It does not involve the judge. The prosecutor and your attorney will attempt to negotiate things like the actual charge of DUI to see if anything else can be charged instead, like a DUI per se or Reckless Driving. Parts of the sentence are also negotiated in a plea agreement like the length of jail time, fines, fees, and conditions of the DUI sentence.
Plea agreements are tricky business with lots of areas you could lose out on if your lawyer is not very familiar with DUI-specific plea agreements.
This is where hiring an experienced DUI-specific defense attorney pays for itself.
When you accept a plea agreement, your case is over and you agree to the terms of the agreement. You want the best possible terms that are in your favor. But so does the government. It takes an experienced attorney to ensure the government agrees to terms that are favorable to you.
You go to court at a hearing called a change of plea hearing to accept a plea agreement, and you plead guilty to whatever is in the plea agreement.
The judge will no doubt tell you that the judge doesn’t have to follow a plea agreement and the judge can either reject a plea agreement, accept it, or alter it.
Depending on how your plea agreement is drafted you may or may not be able to undo this and withdraw your plea if the judge wants to sentence you more harshly than what is in the plea agreement. It does happen, and many people with inexperienced attorneys have been stuck having a judge impose a more severe sentence than what is in the plea agreement because they didn’t draft it with terms that protected them.
Presuming the judge accepts the plea agreement, in most cases, the sentencing happens right after that at the same hearing. Your sentence should be clearly listed in the plea agreement and is imposed by the judge. That can mean if jail time was agreed to, that you start serving your jail time right there and go to the jail. Fines and fees are usually placed on a payment program and the judge will tell you when and how much to pay every month. Conditions of the sentence such as substance abuse counseling are also scheduled with deadlines that you have to meet.
Finishing the case
When all of the above is accomplished, months have usually gone by.
From arrest to sentence, it is not unusual for 6 months or more to have elapsed.
Having an experienced DUI-specific attorney who knows the complexity of a DUI charge, sentence and prosecutor are the only ways to ensure your case is handled properly.
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.