A plea agreement is a negotiated resolution: you plead guilty or no contest to the charge or to a lesser or related offense, and the prosecutor does something in return. Montana's statute allows three kinds, a judge may reject any of them, and in a DUI case two things are off the table by law: a deferred prosecution and a deferred sentence. This page is part of our Montana DUI Guide and expands the resolution stage of the DUI court process.
The Three Kinds of Agreement
Under MCA § 46-12-211(1), the prosecutor and the defense "may engage in discussions with a view toward reaching an agreement" under which, in exchange for a plea, the prosecutor will do one of three things. The difference between them is what happens if the judge does not follow the agreement.
| Type | What the prosecutor agrees to | Can you withdraw if the judge rejects it? | MCA |
|---|---|---|---|
| Charge agreement | The prosecutor will move to dismiss other charges. | Yes. The court must give you the chance to withdraw the plea. | § 46-12-211(1)(a), (4) |
| Agreed sentence | The parties agree that a specific sentence is the appropriate disposition. | Yes. The court must give you the chance to withdraw the plea. | § 46-12-211(1)(b), (4) |
| Recommendation only | The prosecutor will recommend, or not oppose, a particular sentence, which does not bind the court. | No. You have no right to withdraw the plea. | § 46-12-211(1)(c), (2) |
The names in the first column are ours, for convenience. The statute identifies the types only by subsection. When you are handed a written agreement, find the sentence that says which subsection it is made under. If it says (1)(c), the recommendation is only a recommendation.
What Happens in Court
An agreement must be disclosed on the record in open court when the plea is offered (MCA § 46-12-211(2)). Before accepting any guilty or no contest plea, the judge must determine that you understand:
- the nature of the charge, the mandatory minimum penalty, and the maximum penalty (MCA § 46-12-210(1)(a));
- your right to an attorney, to plead not guilty, to a jury trial, to confront witnesses, and not to incriminate yourself (MCA § 46-12-210(1)(b), (c));
- that the court is not required to accept the terms of the agreement (MCA § 46-12-210(1)(d));
- that there will be no trial of any kind once the plea is accepted (MCA § 46-12-210(1)(e)); and
- that for a person who is not a United States citizen, the plea might result in deportation, exclusion from admission, or denial of naturalization under federal law (MCA § 46-12-210(1)(f)).
These advisements can be given through a written acknowledgment form (MCA § 46-12-210(2)), which is common in the lower courts. The court must also find that the plea is voluntary and not the result of force, threats, or promises outside the agreement (MCA § 46-12-204(2)), and that there is a factual basis for it where the charge results in incarceration (MCA § 46-12-212(1)). If immigration status is a concern, speak with an immigration attorney before any plea. See our page on non-citizens and immigration.
When the Judge Says No
For a charge agreement or an agreed sentence, the court may accept it, reject it, or wait to decide. If the court rejects it, the judge must say so on the record, tell you the court is not bound, "afford the defendant an opportunity to withdraw the plea," and warn you that if you persist in the plea the result may be less favorable than the agreement contemplated (MCA § 46-12-211(4)). If the court accepts the agreement, it must tell you it will embody the agreed disposition in the judgment (MCA § 46-12-211(3)).
A recommendation-only agreement works differently. The court must advise you that if it does not accept the recommendation, "the defendant nevertheless has no right to withdraw the plea" (MCA § 46-12-211(2)). Many DUI agreements are of this type. It means the real question is not only what the prosecutor will recommend, but how the particular judge tends to sentence, which is something to ask an attorney who appears in that court.
What a DUI Plea Cannot Include
Three limits come from statute and cannot be negotiated away while the conviction is for DUI:
- No deferred prosecution. A prosecution for DUI or aggravated DUI "may not be deferred" (MCA § 46-16-130(4)).
- No deferred sentence. "A court may not defer imposition of sentence" for a misdemeanor or felony DUI (MCA § 61-8-1011(4)).
- The mandatory minimum jail term. Where the statute sets one, it may not be suspended or served on home arrest unless the judge finds that jail would pose a risk to the person's physical or mental well-being (MCA § 61-8-1007(1)(d), (2)(d), (4)(b)).
The chemical dependency assessment and the education course or treatment also follow any DUI conviction "regardless of disposition" (MCA § 61-8-1007(5)). What can be negotiated is everything inside those limits: which DUI subsection the plea is to, how much jail above the minimum is suspended, the fine within the range, and conditions. See suspended sentences explained and mandatory jail time.
Pleading to a Different Charge
The statute allows a plea "to a charged offense or to a lesser or related offense." In a DUI case, that is how an amendment to a non-DUI charge such as reckless or careless driving happens. Montana has no statutory offense called "wet reckless." An amended charge is an ordinary conviction for that other offense, with its own penalties and its own effect on your license and insurance.
An amendment is the prosecutor's decision, not a right. It is most often discussed where there is a real problem with the State's evidence, which is why negotiation follows discovery and any motion to suppress. Our page on reckless driving reductions covers what a reduction does and does not change.
What You Give Up by Pleading
A guilty or no contest plea waives the trial. In a justice court, city court, or other court of limited jurisdiction, it also "waives the right of trial de novo in district court," and the judge must tell you so and question you to make sure the plea and waiver are voluntary (MCA § 46-17-203(2)(a)).
One tool preserves an issue. With the court's approval and the prosecutor's consent, you may plead while "reserving the right, on appeal from the judgment, to review the adverse determination of any specified pretrial motion," and if you win the appeal you may withdraw the plea (MCA § 46-12-204(3)). This is how a denied suppression motion gets reviewed without a trial.
A plea to DUI is also a conviction that counts as a prior. A second offense within 10 years, and every prior once a person reaches a third, raises the penalties (MCA § 61-8-1011(1)(b)). Weigh an offer against that future cost as well as the immediate sentence. For the decision at the first hearing, see pleading guilty or not guilty.
This page explains Montana law in general as of the 2025 Montana Code Annotated. Whether an offer is a good one depends on the evidence and your circumstances. It is not legal advice about your specific case.