Written by attorney Martin W. Judnich

Montana DUI breath test: to blow or not to blow

The most common question I am ever asked as a criminal defense attorney is if someone in Montana should give a breath test if pulled over for DUI. This is a more complicated answer these days. In 2011 several jurisdictions including Missoula, Montana created a new criminal penalty for not providing a breath sample upon request. Previously, it was just a suspension of drivers license for 6 months. Now, a refusal could lead to jail time, fines and its own criminal conviction. My advice stays the same however.

I advise my clients and potential clients that if you think that you have had more than 1 alcoholic drink per hour, you should not provide a breath sample. There is no magic formula to tell if one individual person is under the influence so, I go with this rough estimate. If you know you have had less than that, provide the sample, you will probably be below the inference or "legal limit." More than a drink an hour is likely to lead to more than a .08 which is easier to get to than you think.

My reasons for this approach are that a DUI conviction is much more serious than the misdemeanor crime of the refusal. Without a breath test, it is much more difficult to convict a person of DUI in Montana. It is no guarantee, but you are increasing your odds. For more info on this subject check out our website or blog.

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