Montana DUI Implied Consent Laws: The Consequences of Refusing a Blood, Breath, or Urine Test

In Montana, if you get pulled over for a DUI and the officer asks you to take a blood or breath test, do you have to take one? What happens if you refuse?

Implied Consent

Montana law requires you to take a blood or breath test if you are arrested for a DUI. Montana’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood or breath for the purpose of determining your blood alcohol content (BAC). The test must be taken as soon as possible from when you were last driving and the officer who arrests you gets to choose which test you take. He or she could ask you to take more than one test and one of those tests may be given before your arrest.

For example, Montana law allows an officer to take a preliminary breath test before you are arrested. This works like a field sobriety test. The officer can use the results to establish probable cause that you have been driving under the influence. If the results are above the legal limit, then the officer can arrest you and ask you to submit to another chemical test. You cannot refuse either the preliminary breath test or the later breath or blood test without facing a penalty for refusal.  

You could be arrested for a DUI even if you are not driving. If you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you. Generally, actual, physical control means that you are in the car and could make it move. In these situations, a driver realizes he is drunk so he pulls over to sleep it off. An officer finds the parked car, wakes the driver, and on smelling alcohol on the driver’s breath arrests him for a DUI. (To read more about the meaning of actual, physical control, see the case State v. Christiansen, 357 Mont. 379 (2010).

Refusing to Take the Test


1st  Offense

2d Offense

3rd  Offense

Refusal to take test

6 month license suspension

1 year license suspension

1 year license suspension

Once you refuse to take the test, the officer must give you written notice that your license will be suspended and information on how to request a hearing to challenge your suspension. If this is your first refusal, the suspension will last for six months. If it is your second or any subsequent refusal within five years, the suspension will last for one year.   The officer will also take your license at that time. You will, however, get a temporary driving permit that is good for five days.  

In most situations, if you refuse to take a mandatory blood or breath test, then you cannot be forced to do so. There are exceptions, however. An officer can order a test without asking you first if you are involved in an accident that causes property damage, serious injury, or death, even if you are rendered unconscious or dead. Also, if you have a prior refusal on your record, then the officer can go get a warrant for a blood test that you would have to take.

Should You Refuse to Take a Mandatory DUI Test in Montana?

It usually does not help you to refuse to take a blood or breath test when you are arrested for a DUI.   In Montana, the penalty for DUI includes jail time and fines. This is more severe than a suspension of your license for refusal. Refusing the test, however, does not guarantee that you won’t be convicted. You can still be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over .08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in Montana or any other state, get help from an experienced DUI attorney.   Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who knowledgeable about your state’s laws and about how the system works in your county’s court.

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