In a Montana DUI case you are entitled to a jury, and a jury trial is what you get unless both you and the prosecutor agree to waive it (MCA § 46-17-201(2)). If the jury is waived, the judge alone hears the evidence and decides guilt. That is called a bench trial. The law, the burden of proof, and the possible sentence are the same in both. What changes is who decides the facts and how many people have to be convinced. This page is part of our Montana DUI Guide and sits beside our page on the DUI jury trial.
How a Jury Is Waived
The Montana Constitution secures the right of trial by jury "to all," and then adds that "upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury" (Article II, Section 26).
The statutes supply the manner. For a misdemeanor, "upon consent of the parties, a trial by jury may be waived" (MCA § 46-17-201(2)). For a felony, the waiver requires "written consent of the parties" (MCA § 46-16-110(3)). Both use the plural. The prosecution is a party, so a defendant who wants a bench trial needs the prosecutor to agree. A defendant cannot be made to give up a jury, and a defendant cannot insist on a judge.
Do Not Lose the Jury by Accident
The constitutional phrase "default of appearance" matters in everyday practice. Some courts require a defendant to appear at a pretrial or jury confirmation hearing, and may treat a failure to appear as giving up the jury. The specifics come from each court's orders and local rules, so we will not state a statewide rule here. The practical advice is simple: read your scheduling order, calendar every date in it, and appear. See missed court dates and warrants.
A similar rule applies on appeal. If a defendant who has appealed to district court fails to appear for a scheduled court date or misses a court deadline, the court may dismiss the appeal, "and the right to a jury trial is considered waived by the defendant" (MCA § 46-17-311(5)).
What Changes and What Does Not
| Jury trial | Bench trial | |
|---|---|---|
| Who decides the facts | Six jurors (12 in a felony case) | The judge alone |
| Agreement needed to convict | All jurors, unanimously | One person |
| Burden of proof | Beyond a reasonable doubt | The same |
| Rules of evidence | Apply | Apply |
| Jury selection and instructions | Yes | None |
| Who has already seen the pretrial motions | Not the jurors | Usually the same judge |
| How you get it | It is the default. You are entitled to it. | Only if both sides consent to waive the jury |
The presumption of innocence applies in every criminal action (MCA § 46-16-204), and so do the Montana Rules of Evidence (MCA § 46-16-201). The statutory penalty ranges in MCA § 61-8-1007 do not depend on how guilt was decided. An appeal from a lower court is available after either kind of trial. See appealing to district court.
Why Some Defendants Keep the Jury
- Unanimity. "The verdict must be unanimous in all criminal actions" (MCA § 46-16-603(1)). To convict, the State has to persuade every juror.
- Fresh eyes. Jurors have not seen the police reports, have not heard the pretrial motions, and have not watched a long line of DUI cases. They hear only what is admitted at trial.
- Defenses about how things looked. Where the defense is that you were not impaired, and the video shows a person who walks and talks normally, six members of the community evaluating that video is often what the defense wants.
- A say in who decides. Jury selection lets each side question prospective jurors and remove some of them (MCA §§ 46-16-114 to 46-16-116). You do not select your judge.
Why Some Defendants Prefer the Judge
- Legal or technical defenses. If the defense turns on whether a test meets the statutory conditions for admissibility, or on the definition of an element such as actual physical control, a judge is trained to apply a rule even when the facts are unsympathetic.
- Facts that may distract a jury. Some cases include details that have little to do with the elements but could color how jurors feel. A judge is expected to set those aside.
- Time and scheduling. A bench trial skips jury selection, instructions, and deliberation.
- A narrow dispute. When the parties agree on most facts and disagree on one issue, a bench trial on stipulated or mostly agreed facts can present that issue cleanly.
One caution on that last point. If the only real dispute is a pretrial ruling, such as a denied motion to suppress, Montana law has a more direct tool: a plea that reserves the right to appeal that ruling, with the court's approval and the prosecutor's consent (MCA § 46-12-204(3)). Our page on plea agreements explains it.
The Same Judge May Have Heard Everything
In a bench trial, the person deciding guilt is often the judge who ruled on the pretrial motions. That judge may have seen evidence that was later excluded, or heard argument about a refused test or a prior conviction. Judges are expected to decide only on admissible evidence, and they do this routinely. It is still a fair thing to weigh, and a fair thing to ask your attorney about for your particular judge.
Questions to Work Through With Your Attorney
- Is the defense mainly about facts and impressions, or about a legal rule?
- What does the video show, and who is more likely to be moved by it?
- Is there anything in the case that a jury may hold against me that is not an element of the offense?
- Has this judge already ruled on, or seen, evidence that will not be part of the trial?
- Will the prosecutor consent to a waiver at all?
- Would a conditional plea preserve the issue I care about without a trial?
There is no generally right answer, and we will not suggest one outcome is more likely than another. The decision belongs to you. It should be made after discovery is complete, not at the first hearing.
This page explains Montana procedure in general as of the 2025 Montana Code Annotated. Local practice varies by court. It is not legal advice about your specific case.