In criminal defense law we are often asked if someone in Montana should provide a breath test if they are pulled over for a DUI. The answer, like most things, is that it depends. The law in Montana is that when you get your driver’s license, you have given the State of Montana your implied consent to provide a breath test upon suspicion of intoxicated driving. However, you also have the right to refuse any sobriety tests. The penalty for exercising your right to refuse is a suspension of your driver’s license, and has now escalated to an additional independent criminal offense. In some other states, you are jailed up to 30 days just for refusing a breath test. Montana’s penalty for refusing a breath test is currently only the automatic administrative suspension of your driver’s license for 6 months. However, within Missoula city limits, an additional city ordinance of a breath test refusal can result in up to a $500.00 fine, and prosecutors often refuse to dismiss or amend the refusal charge. One of the reasons prosecutors won’t dismiss or amend the refusal charge is that in the future, if the same person that refused a breath test is accused of DUI again – law enforcement can easily obtain a telephonic search warrant to forcibly seize the person’s blood for testing. That can be very strong evidence in a DUI charge and with a warrant for blood, obtaining that information can be easier than obtaining a breath test result. Additional information about search warrants for blood can be found here.
If you do provide a breath sample, that is potential evidence to convict you of a DUI. The breath test machines deliver a digital number of what alcohol is detected during a breath sample. Supposedly, it is a fairly accurate number, but like anything else it has its drawbacks. You can learn more about the limitations of breath test machines here. The bottom line is, when you give a test and a number comes out of it, if it is above .08 in Montana, you will be arrested for DUI, and that number will be used against you in a court of law.
So, the question: Do I give a breath sample or not? I advise my potential clients and anyone else that asks me, that if you believe you have honestly had more than 1 drink per hour, you should probably decline the breath test, because there is a good chance that a test will produce a result over .08 That level of breath alcohol is pretty low and easy to get to depending on many factors. You can debate your metabolism and body weight all day long, in the several hundred DUI cases I have been involved in, the hour a drink per hour rule has always been a good standard.
So, if you have had more than that per hour and your drive away from the bar and get pulled over, I would suggest you exercising your constitutional right to refuse the test. Yes, you have the right to refuse it, so you are only exercising your rights. If, however, it has been quite some time since you last had a drink and you honestly believe that you consumed at or less than 1 drink per hour, you should give a breath test. Your result should be below .08 and you will not lose your license for 6 months.
If this topic interests you, or you are concerned about the pending increase of penalty for you exercising your right to refuse a breath sample, write a comment this blog, or talk to your local representative about it. The politicians work for us and represent us. They need to know what we think if you want to have your opinions heard. Exercise the influence of your vote.
The penalty for not providing a breath test is much less disastrous as a DUI conviction; however when you provide a breath test result that is well above 0.08, the chances that you will be convicted of a DUI by the State increase greatly. Without giving a breath test, it can be difficult for law enforcement to convince a jury what your level of intoxication, if any, was. So, more than one drink per hour and you should consider your option of exercising your right to refuse.
The above is not legal advise and is for informational purposes only.
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.