If you refused a breath, blood, or oral fluid test in Montana, you can challenge the license suspension by filing a petition in district court within 30 days after the officer gave you notice of the right to a hearing (MCA § 61-8-1017(1)). The court can pause the suspension while the petition is pending, and it decides only two questions. This page walks through the petition step by step. It is part of our Montana DUI Guide and builds on our test refusal and implied consent page.
Why the Petition Matters
A refusal suspension is 6 months for a first refusal and 1 year for a second or later refusal within 5 years, and the department may not issue a probationary license during it (MCA § 61-8-1032(2)(f), (4)(a)). That makes it different from a suspension after a conviction, where a restricted license is often possible. With a refusal there is no work permit to apply for. The suspension either stands or is set aside by a court.
The suspension is also administrative. The officer forwards the license and a report, certified under penalty of law, stating the basis for the test request and confirming the refusal. On receipt, the department suspends the license (MCA § 61-8-1016(4)(c)(i)). No judge reviews it unless you file.
The Petition, Step by Step
| Step | What happens | MCA |
|---|---|---|
| 1. Find the notice date | The 30 days run from the day the officer gave you written notice of the suspension and of the right to a hearing, which is normally the night of the arrest. | § 61-8-1016(4)(c)(ii), § 61-8-1017(1) |
| 2. File a petition in district court | The petition goes to the district court in the county where the arrest was made. For a Missoula County arrest that is the Fourth Judicial District Court. | § 61-8-1017(1) |
| 3. Ask for a stay | On the petitioner's request, the court may stay the suspension until the hearing. A stay is discretionary, and without one the suspension keeps running. | § 61-8-1017(3) |
| 4. The court sets a hearing | The court gives at least 10 days' written notice to the county attorney, and to the city attorney if the incident led to a charge in city or municipal court. | § 61-8-1017(2) |
| 5. The hearing | The court takes testimony, examines the facts, and decides two questions only: the officer's basis for requesting the test, and whether you refused. | § 61-8-1017(4) |
The county attorney or the city attorney may represent the State at the hearing. If they cannot agree on who will, the county attorney does (MCA § 61-8-1017(2)). The petition is a civil filing in a different court from the criminal case, with its own case number and its own judge.
Asking for a Stay
The temporary driving permit the officer issues takes effect 12 hours after issuance and is valid for 5 days following the date of issuance (MCA § 61-8-1016(4)(c)(ii)). After that, you are suspended unless a court says otherwise. Our guide to the temporary driving permit explains those first days.
The stay fills that gap. The statute says that on the petitioner's request the court "may" issue a stay of the suspension pending the hearing (MCA § 61-8-1017(3)). The word is may, so a stay is up to the judge, and it should be requested in writing with the petition. If a stay is granted, keep a copy of the order with you when you drive. If it is denied, or if you never ask, driving after the 5-day permit ends is driving while suspended.
The Two Issues the Court May Decide
The court decides whether the license is subject to suspension "based on no other issues than" these two (MCA § 61-8-1017(4)):
- The officer's basis for requesting a test. MCA § 61-8-1016(2)(a) lists the situations in which a test may be requested. One is particularized suspicion that the person was driving or in actual physical control while under the influence, with the person detained for DUI. Another is probable cause for DUI with the person placed under arrest. Others involve a crash with property damage, serious bodily injury, or death.
- Whether you refused. The question is whether you refused to submit to one or more tests designated by the officer. The officer, not the driver, chooses which test is given (MCA § 61-8-1016(2)(b)).
Because the first issue reaches back to the stop and the arrest, the evidence usually overlaps with the criminal case: the reason for the stop, what the officer saw, the body camera video, and the advisory form. The statute requires the officer to tell the person of the right to refuse and that refusal will result in a suspension of up to 1 year (MCA § 61-8-1016(2)(c)). What was actually said on video, and what the driver said back, is often where the second issue is decided.
What the Hearing Does Not Cover
The limits matter as much as the issues. The court is not asked whether you were in fact under the influence, whether the suspension is a hardship, or whether you need to drive for work. A judge who sympathizes cannot shorten a refusal suspension or convert it to a restricted license. Montana's advisory form also tells drivers that the decision must be made without talking to a lawyer and that an independent test afterward does not change the suspension. Our guide to the right to a lawyer before testing covers that point.
The statute does not say which side carries the burden of proof at the hearing. That comes from court decisions, and it is something to go over with a lawyer before the hearing. The statute also does not grant a state court appeal when a license is suspended under a tribal law that requires testing (MCA § 61-8-1017(5)).
If You Hold a Commercial License
A refusal also suspends a commercial driver's license for at least 1 year (MCA § 61-8-1032(4)(b)). When the stop involved a commercial motor vehicle, the CDL statutes add a parallel petition: within 30 days after notice, in the district court of the county where the refusal or the 0.04 finding was made, with its own short list of issues (MCA § 61-8-808). See our CDL DUI page.
If You Win, and If You Do Not
If the court finds the officer lacked a basis for the request, or that there was no refusal, the license is not subject to suspension on that report. That ruling does not end the DUI charge, although the same facts may matter there. If the court upholds the suspension, the period in MCA § 61-8-1032 applies, and getting the license back afterward requires the $300 administrative fee and the $200 reinstatement fee. Our reinstatement steps guide covers that sequence.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.