If you are arrested for a second DUI in Montana while your first case is still open, the two cases affect each other in several ways. The new arrest can put your release in the first case at risk, and a conviction in either case can raise the penalty range in the other. This page explains those connections. It is part of our Montana DUI Guide.
How the Two Cases Connect
| Issue | What the law says | MCA |
|---|---|---|
| Release on the first case | The prosecutor may move to revoke your release, and the court may change conditions or revoke bail. | §§ 46-9-503(1), 46-9-311 |
| Counting priors | A pending offense counts as a conviction if it results in a conviction before sentencing on the other case. | § 61-8-1011(1)(a)(iii) |
| Aggravated tier | A pending charge that meets the aggravated DUI definition moves the other case into the aggravated penalty rows. | § 61-8-1007(1)(c), (2)(c) |
| Testing after a refusal | With a pending DUI offense, a refused test may be obtained by search warrant. | § 61-8-1016(4) |
| Sentences | Separate sentences run consecutively unless the court orders otherwise. | § 46-18-401(4) |
Release Conditions in Both Cases
When you were released on the first charge, the court set conditions. A standard one is that "the defendant may not commit an offense during the period of release" (MCA § 46-9-108(1)(a)). Many DUI release orders also prohibit alcohol.
A new arrest is an allegation that those conditions were broken. If a defendant violates a condition of release, the prosecutor may make a written motion to revoke the release order, and a judge may issue an arrest warrant (MCA § 46-9-503(1)). On application by the State or the defendant, the court may also increase or reduce bail, alter its conditions, or revoke it (MCA § 46-9-311). You are entitled to be heard, and an arrest is not proof. Our page on bail and release conditions explains how those hearings work.
On the new charge the court sets its own conditions. It must use the least restrictive conditions that will ensure your appearance and protect the community (MCA § 46-9-108(3)), but a second arrest while another case is open weighs on that judgment. Bail is set with your prior record in mind, among other factors (MCA § 46-9-301).
Monitoring is likely to come up:
- Alcohol monitoring devices. A court may bar alcohol and require a transdermal monitor or a facial recognition breath unit, and may require you to pay for it (MCA § 46-9-108(1)(i), (2)(b)).
- The 24/7 program. A court may compel participation before trial for a person charged with aggravated DUI, or charged with DUI and convicted of DUI in the previous 10 years (MCA § 44-4-1205(4)). A first case that is still pending is not yet a conviction for that purpose.
See pretrial alcohol monitoring for how those programs work.
How a Pending Case Counts as a Prior
People in this position often ask whether resolving the second case first keeps it a "first offense." Since 2025 the statute has addressed that directly. For counting prior offenses, "conviction" includes "a pending or subsequent offense if the pending or subsequent offense results in a conviction prior to sentencing for the present offense" (MCA § 61-8-1011(1)(a)(iii)).
What that means in practice:
- The date that matters is sentencing. If either case produces a DUI conviction before you are sentenced in the other, the statute's words allow it to be counted there.
- It can run in both directions. The text covers a "pending" offense and a "subsequent" one. Read literally, the earlier arrest could be sentenced as a second offense if the later case ends in a conviction first. How a court applies that language to a given sequence is a question to work through with your attorney.
- A case that does not end in a DUI conviction does not count. A dismissal or an acquittal is not a prior, and neither is a conviction for an offense that is not on the statute's list.
- The 10-year rule still applies to a second offense, and every prior counts toward a third (MCA § 61-8-1011(1)(b)).
The difference is significant. A first per se DUI has no jail minimum and a 6-month suspension. A second carries at least 5 days, a 1-year suspension, required treatment, and a testing, interlock, or forfeiture order. The DUI penalties chart and our second and third DUI page show the ranges.
When One of the Charges Is Aggravated
If a person "has a prior conviction or pending charge" for a DUI that meets the definition of aggravated DUI, the person is punished under the aggravated tier, even if the other arrest has no aggravating fact (MCA § 61-8-1007(1)(c), (2)(c)). So a pending first case with an alcohol concentration of 0.16 or more can raise the range in the second.
The new arrest can also be aggravated on its own facts. A DUI is aggravated if you refuse a breath sample while your license is suspended under an implied consent statute, which can be the situation if you refused testing in the first case (MCA § 61-8-1001(1)(d)). See aggravated DUI.
Testing and Your License
Ordinarily, when an arrested person refuses a requested test, the test may not be given. That protection does not apply when the person has a prior refusal or "a prior conviction or pending offense" for DUI. In that case the officer may apply for a search warrant to collect blood or oral fluid (MCA § 61-8-1016(4)). A second arrest with a case pending therefore often includes a warrant.
License actions also stack. A refusal in each case brings its own suspension, and each has its own 30-day deadline to challenge (MCA § 61-8-1017(1)). A conviction brings a separate suspension. Driving on any of those suspensions is a new offense. See test refusal and license suspension.
Two Courts, Two Schedules
Two arrests may be filed in two different courts, for example a municipal court and a justice court, with different prosecutors. Nothing requires them to move at the same pace. Separate sentences for two offenses run consecutively unless the court orders otherwise (MCA § 46-18-401(4)).
Each case still has to be proved on its own evidence. A weak stop or an unreliable test in one case is not cured by the existence of the other, and the defenses in each should be examined separately before any decision about pleas is made.
What to Do Now
- Tell your lawyer in the first case immediately, before the next court date.
- Follow every release condition in both cases, including no alcohol and any testing.
- Do not drive unless you are certain your license is valid.
- Do not resolve either case alone. A plea in one changes the other.
- Consider an assessment or treatment now. Talk with your attorney about timing first.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.