No. In Montana you do not have a right to speak with a lawyer before deciding whether to take a breath, blood, or oral fluid test in a DUI investigation. The Montana Supreme Court settled that in 1984 and has repeated it since. What the law provides instead is a short list of things the officer must tell you, and a right to counsel that begins at other points. This page explains both. It is part of our Montana DUI Guide.
What the Montana Supreme Court Has Held
The leading case is State v. Armfield, 214 Mont. 229, 693 P.2d 1226 (1984). A trial court had found that a driver was entitled to consult a lawyer before a breath test. The Supreme Court disagreed. It reasoned that the right to counsel protects a defendant at trial and at stages where a lawyer is needed to protect other rights, and that a breath test is not one of those stages. In the Court's words, the driver "was deemed, as a matter of law, to have consented to testing. Neither consent nor refusal is constitutionally protected, and no right to consult counsel attaches to a choice between the two."
A later decision, State v. Reavley, 2003 MT 298, reversed Armfield in part on a different point about when the right to counsel attaches in general. It did not give drivers a right to counsel before testing. The Court has stated the testing rule more than once:
- State v. Strand, 286 Mont. 122 (1997). A person accused of DUI does not have a right to counsel before submitting to the test and so cannot confer with counsel about the implied consent law until after consent has been given or withheld.
- State v. Van Kirk, 2001 MT 184. A person has no right to consult with counsel before deciding to take a breath test, because consent is deemed given as a matter of law. The Court held the driver was not denied his right to counsel when he was not allowed to speak with an attorney before a breath test or field sobriety tests.
Why a Test Is Not Treated Like Questioning
Two ideas run through these decisions.
First, implied consent. By statute, a person who drives or is in actual physical control of a vehicle on the ways of this state open to the public is considered to have given consent to a test of blood, breath, or oral fluid (MCA § 61-8-1016(1)(a)). The decision at the station is whether to withdraw consent the law already presumes.
Second, physical evidence. Article II, Section 25 of the Montana Constitution says no person shall be compelled to testify against himself. The Court has held that the results of a breath test are not self-incriminating communications, and that the privilege does not extend to real or objective evidence. Armfield compared a blood alcohol level to a voice or the body itself.
What the Officer Must Tell You
You do not get a lawyer, but you are not supposed to decide blind.
- The right to refuse and its cost. The officer must inform you of the right to refuse the test and that refusal will result in suspension of your driver's license for up to 1 year (MCA § 61-8-1016(2)(c)).
- The independent test. In Strand, the Court connected the two rules directly. Because the accused cannot consult counsel, "the arresting officer is the only person in a position to inform the defendant" of the right to an independent blood test, and the officer has an affirmative duty to do so. See your right to an independent test.
Whether the advisory was read, read completely, and read at the right time is something we check on the recording in every refusal case.
Where the Right to Counsel Does Apply
| Stage | The rule | Source |
|---|---|---|
| Roadside questions before arrest | No Miranda warning required, and no right to consult counsel first. | MCA § 46-6-107; State v. Allen, 1998 MT 293 |
| Field sobriety tests | No right to consult counsel first. | State v. Van Kirk, 2001 MT 184 |
| Breath, blood or oral fluid test request | No right to consult counsel before deciding. The officer must give the implied consent advisory and tell you about the independent test. | State v. Armfield (1984); MCA § 61-8-1016(2)(c); State v. Strand (1997) |
| Questioning after arrest | Miranda warnings required, including the right to speak to an attorney and have one present during questioning. | MCA § 46-6-107 |
| Initial appearance in court | The judge must inform you of the right to counsel and ask whether you want one. | MCA § 46-8-101(1) |
This is why people are sometimes told both things within a few minutes: that they have the right to an attorney, and that they cannot call one before the test. The first statement is about questioning. The second is about a physical test. More on the questioning side in do I have to answer questions.
If You Asked for a Lawyer Anyway
Many people do, and it is a reasonable instinct. A few points about how it plays out:
- The officer may decline the request and ask again for a yes or no. That is consistent with the case law above.
- If you then took the test, the request for a lawyer does not make the result inadmissible under these decisions.
- If you were recorded as refusing, whether you actually refused is an issue the district court decides on a petition, along with whether the officer had a basis to request the test (MCA § 61-8-1017(4)). Confusion, a medical problem, or a request to speak with someone first are facts that can matter there. The outcome depends on what was said and done, and the recording usually shows it.
- Nothing in these decisions forbids an officer from permitting a phone call. They hold only that one is not required.
What to Do Afterward
The practical consequence of the rule is that the first chance to get legal advice comes after the decision is made. Two deadlines follow quickly. A refusal suspension can be challenged only by a petition filed within 30 days in the district court of the county of arrest (MCA § 61-8-1017(1)), explained in challenging a refusal suspension. And your first court date is usually close behind. Our first 24 hours checklist and our test refusal page cover what to gather and when.
This page explains Montana law in general as of the 2025 Montana Code Annotated and the court decisions cited. It is not legal advice about your specific case.