One term that is often heard when someone is charged with DUI is “implied consent.” This may sound intimidating and legalistic, but it is actually easy to understand. The Montana Legislature passed a law that states that anyone driving on Montana roads is deemed to have given their implied consent to testing for alcohol and drugs. For an officer to make a legal request for a breath or blood test the officer must have legal cause to seize the individual and legal cause to ask for a breath or blood test. Typically officers are allowed to request a breath or blood test under Montana’s implied consent law if the officer has, at minimum, particularized suspicion a suspect is under the influence of alcohol or drugs, or if the suspect was involved in an accident that caused bodily injury to any person, including the suspect themselves.
The arresting officer chooses whether to administer a breath or a blood test, and the driver has no right to call an attorney before deciding to take the test. It is important to note that a driver has a constitutional right to refuse to consent to a breath or blood test. If, however, the driver refuses the test, the implied consent law provides that the driver’s license must be seized and suspended for a minimum of six months. However, suspensions and revocations due to implied consent violations may be appealed. Further, the fact that a driver has refused a breath test is admissible as substantive evidence of guilt in a DUI trial. Finally, if the driver refuses to submit to testing and has prior DUI convictions or has previously refused to consent to a breath or blood test, the officer may seek a warrant forcing the individual to submit to a blood test.
Many drivers do not realize that they have the right to have an independent blood sample analyzed at their own cost. What’s more, they retain this right even if they refuse to take the test required by the police officer.
The driver’s right to an independent test is critical. The officer must advise the driver of this right, and the officer cannot unreasonably impede the driver’s right to an independent test. In fact, the driver’s right to an independent test is so important that if an officer fails to follow up on it, the DUI charges must be dismissed.
If your driver’s license has been suspended or revoked, you don’t have to face it alone. The attorneys at Tipp & Buley are ready to assist you. We understand how important your driver’s license is to everyday life. We have defended DUI cases aggressively for over 55 years, and we’ll give your case the attention it deserves. To make an appointment at our Missoula office, call 406-389-4215 or visit our website.
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