Many people I talk with after a DUI stop are surprised that a refusal creates two separate problems. One is the criminal DUI charge. The other is a license suspension that the Motor Vehicle Division imposes because of the refusal itself, whether or not you are ever convicted. I am certified in NHTSA Standardized Field Sobriety Testing and have worked inside a local prosecutor's office, so I look at a refusal case from both sides: what the officer had to do, and what the State will try to do with your "no." This page explains how Montana's implied consent law works and where a refusal can be challenged. For the bigger picture, start with our Missoula DUI defense page.
What Implied Consent Means in Montana
Under MCA § 61-8-1016, a person who drives in Montana is considered to have consented to a test of blood, breath, or oral fluid to determine alcohol or drug concentration. That consent also covers a preliminary alcohol screening test, the roadside breath device often called a PAST. The PAST has to be given by an officer certified by the department, using a certified instrument (MCA § 61-8-1016(1)(c)). Taking the PAST does not satisfy the obligation to take the evidentiary test afterward.
Before a test is requested, the officer must give an advisory that includes a warning that refusal will result in a suspension of up to 1 year (MCA § 61-8-1016(2)(c)). Whether the advisory was given correctly, and at the right time, is one of the first things I check in the report and on video.
What a Refusal Costs Your License
The refusal suspension lengths are set by MCA § 61-8-1032, and they are exact rather than "typical." The suspension runs from the date of the refusal (MCA § 61-8-1032(2)(d)), and the department may not issue a probationary license during it (MCA § 61-8-1032(2)(f)).
| Situation | Suspension | Probationary license |
|---|---|---|
| First refusal | 6 months | None (MCA § 61-8-1032(4)(a)) |
| Second or later refusal within 5 years of a previous refusal | 1 year | None (MCA § 61-8-1032(4)(a)) |
| Commercial driver's license, first refusal | CDL suspended 1 year | No CMV driving (MCA § 61-8-1032(4)(b)) |
| Commercial driver's license, second or later refusal | CDL suspended for life, reinstatement possible after 10 years | No CMV driving (MCA § 61-8-1032(4)(b)) |
There are fees as well. A person with an implied consent violation must pay the department a $300 administrative fee (MCA § 61-8-1032(3)(a)). On top of that, a license suspended under § 61-8-1016 stays suspended until the $200 reinstatement fee is paid (MCA § 61-2-107(1)).
The Temporary Permit and the 30-Day Petition
When you refuse, the officer takes your license and forwards it to the department. You receive a temporary driving permit that becomes effective 12 hours after it is issued and is valid for 5 days from the date of issuance (MCA § 61-8-1016(4)(c)). After that, the suspension is in effect unless a court stays it.
You can fight the suspension. Under MCA § 61-8-1017(1), you may file a petition within 30 days after the officer gives you notice of the right to a hearing. The petition goes to the district court in the county where you were arrested, not the court handling the DUI charge. For an arrest in Missoula County, that is the Fourth Judicial District Court. The court may stay the suspension while the petition is pending (MCA § 61-8-1017(3)). The hearing is narrow: it looks at whether the officer had a basis to request the test and whether you actually refused (MCA § 61-8-1017(4)). Our license suspension and hearings page walks through that process in more detail.
Can Police Still Get a Blood Sample?
After a refusal, an officer may apply for a search warrant under MCA § 46-5-224 to collect a sample of blood or oral fluid (MCA § 61-8-1016(4)(b)). The same section also says a refused test may not be given unless the person has a prior refusal, or a prior or pending conviction for DUI or certain DUI-related homicide or assault offenses (MCA § 61-8-1016(4)(a)). A third provision says the section does not apply to tests performed under a search warrant (MCA § 61-8-1016(5)).
Those provisions do not fit together neatly. The Montana Department of Justice's own DUI Quick Reference Manual describes whether a blood warrant is allowed on a first offense with no prior as unsettled law. If a warrant was used in your case, the application, the judge's approval, the timing of the draw, and how the sample was handled can all matter.
How a Refusal Is Used in the Criminal Case
A refusal is evidence. Under MCA § 61-8-1018(2), the trier of fact may infer from the refusal that the person was under the influence, and the statute adds that the inference is rebuttable. People refuse for many reasons: confusion about the advisory, a medical problem, fear, or bad advice from a friend. Context can be presented, and the State still has to prove the DUI itself.
A refusal can also change the level of the charge. If you refuse a breath sample while your license is already suspended, canceled, or revoked under an implied consent statute, the DUI meets the definition of aggravated DUI (MCA § 61-8-1001(1)(d)), which carries higher mandatory penalties. See our aggravated DUI page for how that works.
Roadside Screening Refusals
Because the PAST is one of the tests covered by implied consent, people often ask whether refusing only the roadside device counts. The statute answers one version of that question clearly: if you refuse a PAST and another test during the same incident, the department may not treat them as separate refusals for suspension purposes (MCA § 61-8-1016(2)(e); see also § 61-8-1032(2)(e)). In other words, the two refusals count once.
Commercial Drivers Who Refuse
For a commercial driver's license holder, a refusal carries its own consequences. A first refusal suspends the CDL for 1 year. A second or later refusal suspends it for life, with reinstatement possible after 10 years (MCA § 61-8-1032(4)(b)). Refusal under any implied consent law is also listed as a major offense for CDL disqualification (MCA § 61-8-802(2)). Our CDL and commercial driver DUI page covers the rest.
How I Approach a Refusal Case
Every refusal case turns on its facts, but the questions I start with are similar:
- Did the officer have a lawful basis for the stop and for requesting a test?
- Was the implied consent advisory read correctly and completely?
- Was it actually a refusal, or confusion, a medical limitation, or a request to speak with someone first?
- If there was a PAST, was the officer and the device certified?
- If there was a blood warrant, was it properly sought and executed?
- Was the 30-day petition filed on time, and should a stay be requested?
The refusal case and the DUI case run on different tracks, and a decision in one can affect the other. Depending on the facts, a successful petition can end the suspension, and weaknesses in the refusal can also matter at trial. If the stop involved field sobriety testing, our field sobriety tests page explains how those tests are supposed to be given.
This page explains Montana law in general under the 2025 Montana Code and is not advice on a specific case.