If you refuse to submit to an Intoxilyzer breath test then your driver’s license can be suspended pursuant to § 61–8–402, MCA.
After a driver’s license suspension under § 61–8–402, MCA, your attorney can file a petition to reinstate the driver’s license pursuant to § 61–8–403, MCA. Then the district court conducts an evidentiary ruling on the petition and makes a ruling on the petition for reinstatement of a driver’s license.
Contact Greg Beebe, an experienced DUI defense attorney in Helena, Montana, for Lewis and Clark County. He also represents clients charged with drunk driving in Boulder in Jefferson County and the surrounding areas of Montana.
Petition for Reinstatement of a Driver’s License in Montana
Pursuant to § 61–8–403(1), MCA, a person whose driver’s license has been seized “may file a petition to challenge the license suspension or revocation in the district court in the county where the arrest was made.”
In a driver’s license reinstatement proceeding, a district court is limited to considering the issues set forth in § 61–8–403(4)(a), MCA. The suspension of a driver’s license is presumed to be correct, and the “petitioner bears the burden of proving that the state’s action was improper.” Muri v. State, 2004 MT 192, ¶ 5, 322 Mont. 219, 95 P.3d 149.
Under Section 61–8–403(4)(a)(i), (iv), MCA, if it is alleged that the driver refused testing, then the issues include whether:
(i) a peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two and the person was placed under arrest for violation of 61–8–401 or 61–8– *462 465;
(iv) the person refused to submit to one or more tests designated by the officer.
Section 61–8–403(4)(a)(i), MCA, requires a court to examine and consider also whether “the person was placed under arrest for violation of 61–8–401.” In determining whether a person was placed under arrest under § 61–8–403(4)(a)(i), MCA, a court “must consider whether an officer had the right to make the arrest.” Hulse, ¶ 13.
“An officer has the right to make an arrest if the arrest is supported by probable cause.” Hulse, ¶ 13. Probable cause “exists when the facts and circumstances within the arresting officer’s personal knowledge are sufficient to warrant a reasonable person to believe that the suspect has committed an offense.” Hulse, ¶ 13.