Criminal Law

What happens after a person is arrested? In most cases after arrest the person arrested is usually provided an opportunity to post bail. Bail may be in the form of cash or bail bond. After the appropriate amount of bail is posted then the person will be released but required to appear in Court usually within 48 hours. At this first appearance the Court will conduct an Arraignment.

What is an Arraignment? An arraignment is the initial appearance in Court. At this time the Court advises the person of the nature of the charges, the sentence which may be imposed and of several rights afforded under Montana Law. After advising the person, he/she will be asked to enter a plea of guilty or not guilty. If a plea of guilty is entered the Court will proceed to sentencing. If a plea of not guilty is entered the case is usually set for trial. After advising the person, he/she will be asked to enter a plea of guilty or not guilty. If a plea of guilty is entered the Court will proceed to sentencing. If a plea of not guilty is entered the case is usually set for trial.

How should a person plead at an arraignment? Generally, one should plead not guilty and request a jury trial, at this initial stage so that he/she can contact an attorney to investigate the matter. Even if a person believes he/she is guilty the law permits the person to enter a not guilty plea. The plea may always be changed later pursuant to a negotiated plea agreement.

What happens after arraignment? Usually the matter is set for trial. If you hire an attorney he/she may file motions with the Court and pretrial hearings may be set. Your attorney may also negotiate a plea agreement with the prosecution which would resolve the matter without the requirement of a trial.

Do I need an attorney? If you are charged with a crime serious enough to warrant arrest and possible incarceration you should contact an attorney. You should contact an attorney as soon as possible. The criminal process is far to serious and complicated to navigate without the assistance of an attorney. Further in this page, information is provided on how to obtain an attorney if you can not afford and attorney. Even if a person is guilty, an attorney can negotiate for a plea agreement which may reduce the charges or punishment that would be imposed.

What is the right to remain silent? The 5th Amendment of the Constitution provides that no person shall be compelled in a criminal case to be a witness against himself. As a result police are required to advise a suspect of his/her right to remain silent and the right to have an attorney present during any questioning. If a suspect asks to remain silent or for an attorney prior to questioning no further questioning may take place.

Does an accused have the right to representation by an attorney? Yes, The U.S. and Montana Constitutions provide that the accused shall enjoy the right to have the assistance of counsel. If you can not afford an attorney the Court must appoint an attorney who will be paid for by the Court. If you can afford an attorney you may retain an attorney or waive your right to an attorney.

What is an unreasonable search and seizure? Both the Montana and Federal Constitutions prohibit unreasonable searches and seizures. Both mandate that the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. The Montana Constitution also includes a right to privacy. It provides that the right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interests.

What happens if my rights are violated? Your attorney will usually file a motion with the Court to dismiss the case or deny the prosecution the opportunity to use evidence which was unlawfully obtained. Preparing and filing such a motion could be very important to either obtaining a dismissal or plea agreement in your case.

There are many more important statutory and Constitutional Rights. You should contact an attorney to obtain specific advice about your case.

Should a person take the Breath Test? Yes, under Montana Law a person is considered to have given consent to taking the breath test upon the request of a peace officer. The law also allows a person to refuse. A person who refuses the test will have his or her drivers license suspended or revoked for a period of not less than 6 months. If a person does not believe that he or she is under the influence of alcohol than generally he/she should take the test. A breath test below or near .10 will likely result in dismissal or reduced charges. If a person believes that he or she is under the influence of alcohol but cannot afford to lose his or her drivers license they should still take the test.

Can I ask for a blood test or another confirmatory test? Yes, Montana Law and the Montana Constitution both require that a DUI suspect be provided with the opportunity to obtain an independent test for alcohol or drugs at his or her own expense. An independent test helps assure the accuracy of the offered test. If after requesting an independent test one is not provided then the case may be dismissed by the Court.

Can I get my drivers license back if it is suspended for DUI? Maybe, it depends upon the circumstances.

Refusal: If a person refuses the breath test his or her license will be suspended for a period of 6 months and revoked for a period of 1 year for a second or subsequent refusal. For refusal a probationary license may not be obtained. Under limited circumstances a petition may be filed with the District Court to request return of the drivers' license.

DUI Conviction: For a first DUI conviction a persons' drivers' license will be suspended for a period of 6 months and revoked for a period of 1 year for a second or subsequent conviction. This time is in addition to any applicable suspension for a refusal. An essential driving or probationary permit may be issued if all of the following requirements are met:

1. Pay $100.00 reinstatement fee to DMV.
2. Obtain Judges recommendation for probationary license.
3. Enroll in the ACT Program
4. Pay fees, take driver test if no license or license is expired.

If you have further questions about reinstatement you should contact the Department of Motor Vehicles at (406)444-3288. To reinstate your drivers' license you must call the DMV and pay the reinstatement fee. Your drivers' license will not be reinstated automatically, even if you comply with all Court ordered requirements.

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