You qualify for a public defender on a Montana DUI if your gross household income is at or below 133% of the federal poverty level, or if your household's disposable income and assets are not enough to hire competent private counsel without substantial hardship (MCA § 47-1-111(3)). You ask the judge at your first appearance, a lawyer is assigned right away, and eligibility is worked out afterward. This page goes through the statute step by step. It is part of our Montana DUI Guide.
When the Right to an Appointed Lawyer Applies
At the initial appearance every defendant must be told of the right to counsel and asked whether a lawyer is wanted (MCA § 46-8-101(1)). The court must order counsel assigned when a defendant cannot afford a lawyer and the charge is a felony, or a misdemeanor for which jail is a sentencing option (MCA § 46-8-101(2)).
A DUI under MCA § 61-8-1002 carries possible jail at every level, including up to 6 months for a first offense that is not aggravated (MCA § 61-8-1007). That is why a DUI qualifies for appointed counsel while many traffic tickets do not. The statute does let a court order at the initial appearance that jail will not be used as a sentencing option, in which case a public defender may not be assigned (MCA § 46-8-101(3)). If a judge says something like that at your first appearance, ask what it means for your case before you enter a plea.
The Two Ways to Qualify
Under MCA § 47-1-111(3), an applicant is indigent if either of these is true:
- The income test. Gross household income is at or less than 133% of the poverty level in the most current federal poverty guidelines published by the U.S. Department of Health and Human Services.
- The hardship test. The disposable income and assets of the applicant and the members of the household are insufficient to retain competent private counsel without substantial hardship to the applicant or the household.
Two details matter. Both tests look at the household, not only at you. And the hardship test has no fixed number, so a person above the income line with heavy obligations can still qualify. The office verifies the information on applications that rely on the hardship test (MCA § 47-1-111(6)).
How the Application Works
| Step | What happens | MCA |
|---|---|---|
| 1. You ask | At the initial appearance the judge must tell you about the right to counsel and ask whether you want a lawyer. | § 46-8-101(1) |
| 2. The court orders assignment | If you say you cannot afford counsel and jail is a possible sentence, the court orders the Office of State Public Defender to assign a lawyer. | § 46-8-101(2) |
| 3. Counsel is assigned first | The office assigns a lawyer immediately, before it decides whether you are eligible. | § 47-1-111(1)(a) |
| 4. You file the paperwork | An application, a detailed financial statement, and an affidavit signed under penalty of perjury, on the office's form. | § 47-1-111(2) |
| 5. Eligibility is decided | If you are found ineligible, the office moves to rescind the appointment. You can ask for a hearing limited to your finances. | § 47-1-111(1)(b), (c) |
Take the financial statement seriously. The court must advise you that a false statement on it can lead to criminal charges, and the judge may inquire into the truth of the affidavit (MCA § 47-1-111(2)). What you disclose there is not admissible in a civil or criminal case, except for impeachment or in a later prosecution for perjury or false swearing (MCA § 47-1-111(2)(c)).
A determination can also change. The office or the court may modify it if more information comes in or your finances change (MCA § 47-1-111(5)), in either direction.
If You Are Found Ineligible
The office must move to rescind the appointment. You can ask for a hearing, and if you do the court must hold one. The hearing is limited to financial eligibility, you cannot be compelled to testify, and you remain entitled to the public defender's services until the court grants the motion (MCA § 47-1-111(1)(c) to (e)). If you do not ask for a hearing, do not appear, or present nothing about your finances, the court must grant the motion.
If the appointment ends, the remaining options are hiring a lawyer or representing yourself. Our page on whether you need a lawyer for a first DUI compares them, and flat fee versus hourly explains how private fees are structured.
What an Appointment Can Cost You
An assigned lawyer is not always without cost. As part of a sentence, the court decides whether a convicted defendant should pay for assigned counsel (MCA § 46-8-113(1)):
- $250 if you plead guilty before trial to one or more misdemeanors and no felony;
- the costs the office actually incurred for the trial, if the case goes to trial.
The court must question you about your ability to pay, may not order payment unless you are or will be able to pay, and may find you can pay only part (MCA § 46-8-113(3), (4)). You can later petition for the amount to be reduced if payment would cause manifest hardship to you or your immediate family (MCA § 46-8-113(5)). The statute speaks of a convicted defendant, so these costs are not imposed on an acquittal or a dismissal.
What the Appointment Covers
The assignment statute lists the kinds of cases a public defender can be appointed for, and for an adult DUI the relevant entry is a person charged with a felony or with a misdemeanor that carries possible incarceration (MCA § 47-1-104(4)(a)(i)). The petition to challenge a test-refusal suspension is a separate civil case in district court with a 30-day deadline (MCA § 61-8-1017), and it is not on that list. Ask your assigned lawyer at the first contact whether it is something the office handles and, if not, what you need to file yourself. See test refusal and implied consent.
A public defender is a licensed attorney with the same duties to you as a hired one, and the same questions apply: who is assigned, how to reach them, and what they will review. Our list of questions to ask a DUI lawyer works for either.
If You Would Rather Hire a Lawyer
Qualifying for a public defender does not require you to use one, and you may waive counsel altogether if the court finds the waiver is knowing, voluntary, and intelligent (MCA § 46-8-102). Some people who qualify still choose to hire because they want to pick their lawyer or need help with the license case. If cost is the question, what a DUI lawyer costs explains what drives a fee.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case, and the Office of State Public Defender decides eligibility.