The consequences for a second driving under the influence (DUI) conviction are more serious. Under Montana law, a DUI as a second offense, in violation of § 61–8–401, MCA, is punishable by up to one year of incarceration. Section 61–8–714(2)(a), MCA. Also, in some circumstances, the arresting officer can attempt to forfeit a vehicle after a second or subsequent DUI.
If a second or subsequent offense is charged, then the prosecution does not have to prove any prior convictions at trial. However, the prior conviction must be established at the sentencing hearing. See State v. Campbell, 615 P.2d 190 (Mt. 1980). A “Per Se” DUI conviction can be used to enhance a DUI charge. The reverse situation is also true because a DUI conviction may be used to increase a “Per Se” DUI charge.
The “Limited Justice Courts,” including justice, city, and municipal courts, have original jurisdiction over a first or second DUI and Per Se offenses.
Attorney for a Second DUI in Helena, Montana
If you were arrested for your second driving under the influence charge in Helena, Montana, or any of the surrounding areas, then contact a criminal defense attorney at Beebe Law Firm. Greg Beebe is experienced in fighting DUI charges involving a prior conviction. Whether your arrest occurred after a breath test, blood test, or refusal to submit, Greg Beebe can help.
Greg Beebe represents residents in Helena in Lewis and Clark County, Boulder in Jefferson County, Missoula in Missoula County, Bozeman Gallatin County, and other surrounding areas in Montana.
Call today at (406) 442-3300 for a free consultation to discuss your case.
Penalties for a Second DUI
If you are convicted of a second DUI in Montana, the penalties are as follows:
Jail – 7 days to 6 months
Driver’s License Suspension – 1-year suspension (driver’s license suspension commences a year from the date of the conviction)
Penalties for a Second DUI (Judge’s Handbook)
The offender must be fined a minimum of $600 to a maximum of $1000.
The offender must be sentenced to a minimum of seven days in the county jail (or county facility approved by the court) to a maximum of six months.
If served in a county facility, the statute provides that the offender, if financially able, must pay the cost of imprisonment in the facility.
Forty-eight hours of the jail/facility time must be served consecutively.
Any imprisonment served beyond the required 48 consecutive hours can be served under home arrest as provided in Title 46, Chapter 18, part 10.
A minimum of five days in the jail/facility may be suspended only if the sentence will pose a risk to the offender’s physical or mental well-being.
A letter signed by a physician, psychologist, or psychiatrist describing the risk is sufficient if the judge is convinced of the seriousness of the risk.
The offender convicted of second offense DUI must complete an assessment for chemical dependency and the ACT education course and treatment.
ACT programs should follow Addictive and Mental Disorders Division requirements as to the assessment and general educational course requirements for multiple offenders.
Treatment is required at a level appropriate to the defendant’s alcohol and/or drug problem as determined by the judge based upon recommendations of a certified chemical dependency counselor.
The offender may attend the ACT program of the offender’s choice as long as the program has been approved by the Department of Public Health and Human Services.
The mandatory treatment can be provided by any certified chemical dependency counselor.
For second or subsequent convictions, the treatment program must be followed by monthly monitoring for a period of at least one year from the date of admission to the program. 61-8-733.
On the second or subsequent conviction of a violation of 61-8-401 or 61-8-406 the court, in addition to the punishments provided in 61-8-714 and 61-8-722 and any other penalty imposed by law, shall order that each motor vehicle owned by the person at the time of the offense be either seized and subjected to the procedure provided under 61-8-421 or equipped with an ignition interlock device as provided under 61-8- 442.
Driver Control suspends the driver’s license or privilege for one year of any person convicted of a second offense DUI.
The revocation will remain in effect after one year unless the ACT program is completed and the $200 reinstatement fee is paid.
This means that a person convicted of second offense DUI who fails to complete treatment will be suspended indefinitely and must be charged with a violation of MCA 61-5-212 Driving while license suspended or revoked – penalty – seizure of vehicle or rendering vehicle inoperable, rather than a violation of MCA 61-5-102 Driver’s to be licensed, if the person operates a motor vehicle.
The judge may not recommend a probationary license for a person convicted of a second or subsequent DUI, although the offender must contact Driver Control to obtain a probationary license.
Driver Control will issue a probationary driver’s license three months after conviction with license restrictions determined by Driver Control based on good cause or necessity as shown by the offender if:
The offender files an Application for Restricted Probationary License with Driver Control.
The offender provides proof of financial responsibility.
The offender is compliant with ACT including completion of any ordered treatment.
The offender pays the $200 reinstatement fee.
The offender pays the driver’s examination fee and completes the driver’s test.
In addition to other punishments provided for in 61-8-401 or 61-8-406, the court may restrict a defendant to only driving a motor vehicle if an ignition interlock device is installed and functioning. This penalty includes the payment of the costs of leasing, installing and maintaining the device. The criteria for ordering the interlock device are:
If the interlock device is reasonably available; the defendant’s BAC at the time of the arrest was 0.16 or greater; or the defendant was previously convicted of 61-8-401 or 61- 8-406.(28 ).
The duration of this restriction must run parallel to the time period for suspension or revocation of the driver’s license of the defendant.
If the defendant pays the reinstatement fee and shows proof of compliance with an interlock restriction imposed by the court, the department may “stay” the suspension or revocation of the defendant’s driver’s license.
The “Look Back” Period
To determine whether a second DUI is subject to enhanced penalties, the courts will consider the “look back” period. For a second DUI / BAC offense, if less than ten years have passed between the present offense and a previous conviction.
If the second DUI / BAC occurred more than 10 years after the last conviction, then it is not counted as a second DUI.
Restricted Probationary Driver’s License
The convicting judge determines if and when an offender is eligible for a restricted probationary driver license. An ignition interlock may be required. A $200 driver license reinstatement fee is required. No restricted probationary driver license is allowed if the driver refused to provide an alcohol test when requested by the investigating officer.
Under the restricted probationary driver’s license, the only driving permitted is to and from the driver’s residence and to work or school, required chemical dependency program, and a location reasonably related to maintenance of the household.
Driver Record – Ten conviction points are added to the driver record for each DUI/BAC conviction.
Ignition Interlock or Vehicle Forfeiture – At a minimum, a 2nd, 3rd or subsequent DUI/BAC offender restricted to ignition interlock must complete 45 days of the 1-year suspension (2nd offense); 90 days of the 1-year suspension (3rd offense); or be an authorized DUI Court participant.
The offender must pay all costs associated with installation, lease, and maintenance of ignition interlock. An offender may need to lease more than one interlock device in order to accommodate all of their driving needs.
As an alternative to ignition interlock, a judge may order every vehicle owned by an offender to be seized and forfeited
24/7 Sobriety Program
The 24/7 Sobriety Program in Montana might apply to people charged with a 2nd or subsequent DUI/BAC as a condition of their release from jail pending trial. Some offenders can also be sentenced to the program if they are convicted of DUI or BAC, or as a condition of probation or parole.
Abstinence from alcohol and drug use is required. Compliance is monitored via twice-daily alcohol breath tests, an alcohol-monitoring ankle bracelet, or any combination of drug patch testing, urinalysis, saliva testing, or other approved testing.
A – C – T Phases
A = Assessment
C = Course
T = Treatment
Assessment – an evaluation to determine if the offender is chemically dependent must be performed by a licensed addiction counselor (LAC) at a state-approved program. If an offender disagrees with the results of their assessment, they may seek—at their expense—a second opinion from an independent counselor licensed to practice in Montana. The offender must then seek the opinion of the court as to which recommendation is the most appropriate treatment course to follow.
Course – 12 hours of education regarding Montana law; consequences for driving impaired; and how alcohol/drugs affect a person’s physiology, driving, and choices. The course must be provided by a LAC at a state-approved program.
Treatment – the level of treatment recommended will depend on the level of chemical dependency found in the assessment. Recommendations will vary from outpatient to inpatient residential treatment. An offender may seek the appropriate level of treatment from any competent provider licensed to practice in Montana.
Montana DUI – Visit the official Montana government website to read more about the penalties and fines that are associated with driving under the influence of alcohol or drugs.
Montana Rehab – Visit Montana’s rehab website to read more about Montana’s rehab centers.
Finding a DUI Attorney in Helena, MT
If you were arrested for your second DUI in Montana, you need to discuss your case with a Montana criminal defense attorney. Greg Beebe at Beebe Law Firm is an experienced DUI attorney and is ready to defend you. His familiarity with the courts and the resources available for people who have multiple DUIs may help you stay out of jail.
Beebe Law Firm represents clients in Montana who have been charged with DUI offenses. Greg Beebe will fight and defend anyone in the State of Montana and residents in Lewis and Clark County, Missoula County, Gallatin County or other Montana communities. His office is conveniently located at 1085 Helena Avenue in Helena, Montana, between Idaho Avenue and North Dakota Avenue.