A misdemeanor DUI in Montana is tried to a jury of six people, who must agree unanimously that the State proved each element beyond a reasonable doubt before they can convict (MCA §§ 46-17-201(1), 46-16-603(1)). The trial follows a set order: jury selection, opening statements, the State's evidence, the defense, instructions, closing arguments, and deliberation. This page is part of our Montana DUI Guide and expands the trial stage of the DUI court process.
Your Right to a Jury, and Its Size
The Montana Constitution provides that "the right of trial by jury is secured to all and shall remain inviolate" (Article II, Section 26). For misdemeanors, the statute puts the number at six: the parties "are entitled to a jury of six qualified persons but may agree to a number less than six at any time before the verdict" (MCA § 46-17-201(1)). The same right applies in municipal court for charges under state law (MCA § 46-17-403).
A felony DUI is different. The parties in a felony case have a right to a jury of 12 (MCA § 46-16-110(1)), and each defendant has six peremptory challenges rather than three (MCA § 46-16-116(1)).
Many courts require the defense to confirm, by a date in the scheduling order, that a jury trial is still wanted. Missing a court-set deadline or a hearing can have consequences for the jury right, so read every order. The choice between a jury and a judge is covered on our bench trial vs. jury trial page.
Where the Jurors Come From
The clerk of the district court prepares a jury list each year for every justice, municipal, and city court in the county. Each list must be made up of residents of the county, city, or town, and must be selected "in any reasonable manner that ensures fairness" (MCA § 46-17-202(1)). Jurors for your trial are summoned from that list. An objection to how a panel was selected or summoned is made by a written motion, generally at least 5 days before trial (MCA § 46-16-112).
Jury Selection
Selection is a conversation, not a lottery. "The prosecutor and the defendant or the defendant's attorney shall conduct the examination of prospective jurors," and the judge may ask additional questions (MCA § 46-16-114(2)). In a DUI trial the questions tend to cover views about drinking and driving, experience with law enforcement, and whether a juror can hold the State to its burden.
There are two ways to remove a prospective juror:
- A challenge for cause. Each side may challenge a juror for a listed reason, such as a relationship to a party, or "a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality" (MCA § 46-16-115(2)(j)). The judge decides each one.
- A peremptory challenge. No reason has to be given. In a case tried to a six-person jury, "the prosecution and all the defendants are allowed three peremptory challenges each" (MCA § 46-16-116(4)).
The court may also seat one or more alternate jurors, with one more peremptory challenge per side for each (MCA § 46-16-118).
The Order of Trial
| Stage | What happens | MCA |
|---|---|---|
| Jury selection | The lawyers question prospective jurors. Each side may challenge for cause and has three peremptory challenges. | §§ 46-16-114 to 46-16-116 |
| Preliminary instructions | After the jury is sworn, the judge may give general instructions about how the trial will run. | § 46-16-401(1) |
| Opening statements | The prosecutor may give one. The defense may give one then, or wait until the State's case is finished. | § 46-16-401(2) |
| The State's evidence | The prosecutor must offer evidence in support of the charge. The defense cross-examines. | § 46-16-401(2) |
| Motion on the evidence | If the evidence is insufficient to support a guilty verdict, the court may dismiss. | § 46-16-403 |
| The defense case | The defense may offer evidence but is not required to. | § 46-16-401(2) |
| Rebuttal | Each side may offer rebutting testimony. | § 46-16-401(3) |
| Instructions and closing arguments | The judge reads the instructions to the jury before the final arguments. | § 46-16-401(4) |
| Deliberation and verdict | The jury retires with a written copy of the instructions. The verdict must be unanimous. | §§ 46-16-401(5), 46-16-603(1) |
The court may depart from this order for good cause (MCA § 46-16-402). The instructions themselves are settled by the judge and the lawyers outside the jury's presence, and an objection to an instruction has to be made then to be preserved (MCA § 46-16-410).
What the State Must Prove
"A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether the defendant's guilt is satisfactorily shown, the defendant must be found not guilty" (MCA § 46-16-204). The defense does not have to prove anything or call any witness.
What the elements are depends on the subsection charged. For an impairment DUI, the State must prove that you were driving or in actual physical control of a vehicle while under the influence. For a per se DUI, it must prove a test result at or above the limit. Our page on per se vs. impairment DUI explains the difference, which shapes the whole trial.
The Evidence a DUI Jury Usually Sees
- The officer's testimony about the driving, the stop, and what was observed.
- Video from a dash or body camera, where it exists.
- Field sobriety tests. See field sobriety tests in Montana.
- A breath or blood result. A report of the result is admissible only if the statutory conditions are met, such as a certified breath test operator or a qualifying laboratory (MCA § 61-8-1018(1)(b)).
- A refusal, if there was one. Proof of refusal is admissible, and the jury "may infer from the refusal that the person was under the influence. The inference is rebuttable" (MCA § 61-8-1018(2)).
The Montana Rules of Evidence apply (MCA § 46-16-201). Evidence that was suppressed before trial is not presented. See motions to suppress.
Deliberation and Verdict
When the jury retires, an officer of the court keeps the jurors together and prevents conversations with others. If jurors disagree about the testimony or want to be informed on a point of law, they notify that officer, and the court may respond after consulting the parties (MCA § 46-16-503).
The verdict must be unanimous, signed by the lead juror, and returned in open court (MCA § 46-16-603(1)). Any party may ask for the jury to be polled (MCA § 46-16-604). A not guilty verdict ends the case: judgment is rendered immediately and you are discharged from custody or from your bail obligation (MCA § 46-18-102(2)). A guilty verdict leads to a sentencing hearing, which in a misdemeanor case may follow right away or be set for a later date.
A defendant may file a written motion for a new trial within 30 days following a guilty verdict, and the court may grant one "if required in the interest of justice" (MCA § 46-16-702). Separately, a conviction after trial in a lower court can be appealed to district court, with a notice deadline of 10 days. See appealing to district court.
This page explains Montana trial procedure in general as of the 2025 Montana Code Annotated. Local practice varies by court. It is not legal advice about your specific case.