Yes, Montana police can get a warrant for your blood after you refuse a breath or blood test, and since March 2025 it is settled that this is true on a first DUI as well as a repeat one. The officer applies to a judge, usually by phone or electronically, and has to show probable cause. This page explains the statute, the Supreme Court decision that resolved the first-offense question, and what a warrant has to contain. It is part of our Montana DUI Guide.
What the Implied Consent Statute Says
Three parts of MCA § 61-8-1016 have to be read together:
- Subsection (4)(a). If an arrested person refuses, "the refused test or tests may not be given" unless the person refused in a prior investigation or has a prior conviction or pending offense for DUI or one of the listed homicide and assault offenses.
- Subsection (4)(b). On the refusal, the officer "may apply for a search warrant to be issued pursuant to 46-5-224 to collect a sample of the person's blood or oral fluid for testing."
- Subsection (5). The section "does not apply to tests, samples, and analyses of blood, breath, or urine" that are "performed pursuant to a search warrant."
For years those provisions were read two ways. One reading treated the prior refusal or prior offense in (4)(a) as a condition for any warrant. The Department of Justice's own DUI manual for prosecutors, dated December 2023, labeled the first-offense question "Unsettled Law."
Clinkenbeard: A Warrant Is Allowed on a First DUI
The Montana Supreme Court answered the question in State v. Clinkenbeard, 2025 MT 54, 421 Mont. 137, 565 P.3d 1259, decided March 25, 2025. A trooper stopped a driver in Ravalli County for speeding, arrested him for a first-offense DUI, and asked for a blood test. He refused. The trooper obtained a search warrant, and the blood result was used in the case.
The driver argued that because he had no prior refusal and no prior DUI, subsection (4)(a) barred the test. The Court disagreed. It reasoned that the test "was not performed under the implied consent statute" but under a warrant, and that subsection (5) takes warrant tests outside the section (¶ 6). Its holding, in ¶ 14, is that the State may obtain a lawful warrant under MCA § 46-5-221 "when there is probable cause for the officer to believe a driver is committing the offense of DUI, regardless of whether that person has refused to provide a sample."
The Chief Justice dissented, reading the statute to protect first-time refusals from warrants. The Legislature could change the rule. As of the 2025 Montana Code Annotated, it has not.
What a Blood Warrant Requires
A blood warrant is an ordinary search warrant under Title 46, chapter 5. The general requirements apply.
| Question | Rule | MCA |
|---|---|---|
| Who may apply | A peace officer, the city or county attorney, or the attorney general | § 46-5-220(1) |
| Who may issue | A city or municipal judge or justice of the peace within their geographic jurisdiction, or any district judge in the state | § 46-5-220(2) |
| What it must show | Facts supporting probable cause that an offense was committed and that evidence may be found, with a particular description of who is searched and what is seized | § 46-5-221 |
| How | In writing, by telephone, or electronically, under oath or affirmation | § 46-5-221 |
| What may be seized | Blood samples that may yield evidence of alcohol or drugs in a person's body | § 46-5-224(1) |
| Time to serve | Any time of day or night, within 10 days of issuance | § 46-5-225 |
Probable cause has to come from the facts of the stop: the driving, the officer's observations, any field tests, any roadside breath result, and any admissions. In Clinkenbeard the Court repeated its earlier explanation that a prior refusal "does not by itself establish the necessary probable cause for a warrant" (¶ 9). A prior record is not a substitute for evidence about the night in question.
Telephone and Electronic Warrants
A blood warrant does not require a trip to the courthouse. Montana law lets an officer apply by telephone or electronically, and MCA § 46-5-222 sets the rules:
- A telephone applicant must, in addition to the usual showing, "state reasons to justify immediate issuance."
- Testimony must be given on oath or affirmation and must identify the person testifying. The judge may administer the oath by phone.
- Sworn telephone testimony must be electronically recorded by the judge or the officer and transcribed verbatim as soon as possible. The recording must include the time and date.
- If the judge approves by phone, the officer signs the warrant in the officer's own name and the judge's name and initials the judge's name. The judge must sign it as soon as possible afterward.
- For an electronic warrant, the application and the signed warrant are transmitted as electronic records that the court retains, with the date and time of transmission.
Each of those steps produces a record. The recording, the transcript, and the signed warrant are part of what the defense is entitled to see, as explained in discovery and evidence.
Without a Warrant: The Federal Backdrop
Two United States Supreme Court decisions explain why officers seek warrants for blood. In Missouri v. McNeely (2013), the Court held that the natural dissipation of alcohol in the bloodstream does not, in every case, create an emergency that justifies a blood test without a warrant. In Birchfield v. North Dakota (2016), it held that the Fourth Amendment permits a warrantless breath test incident to a drunk-driving arrest but not a warrantless blood test.
Consent is a separate exception, and Montana's implied consent law is built on it. How that works for drivers who are injured or unconscious is covered in hospital blood tests after a crash.
The Refusal Still Has Consequences
A warrant does not erase the refusal that led to it. The officer still forwards the license and a sworn report to the department, which suspends the license (MCA § 61-8-1016(4)(c)). At trial, proof of the refusal is admissible "whether or not a sample was subsequently collected for any purpose," and the judge or jury may infer from it that the person was under the influence, an inference the statute calls rebuttable (MCA § 61-8-1018(2)). The suspension lengths are on our test refusal page.
In practical terms, a person who refuses may end up with both a suspension for the refusal and a blood result.
How a Warrant Draw Is Challenged
A warrant is reviewed on what the officer told the judge. Common questions are whether the sworn facts added up to probable cause, whether anything material was misstated or left out, whether the phone or electronic procedure in § 46-5-222 was followed, whether the judge had authority to issue it, and whether the draw itself met the rules in blood test procedure. If a court finds the search unlawful, the remedy is suppression, discussed in motions to suppress.
This page explains Montana law in general as of the 2025 Montana Code Annotated and Montana Supreme Court decisions through October 9, 2026. It is not legal advice about your specific case.