A DUI defense lawyer protects your deadlines, gets the State's evidence, checks that evidence against the rules it was supposed to be gathered under, raises the problems that can be raised, negotiates, and tries the case if you choose a trial. Very little of that looks like television. Most of it is reading records and watching video before any decision is made. This page describes the work in order. It is part of our Montana DUI Guide.
The Work at a Glance
| Stage | What the lawyer does | MCA |
|---|---|---|
| First days | Calendars the license deadline, files the refusal petition if there is one, asks for evidence to be preserved, reviews release conditions | §§ 61-8-1017, 46-9-108 |
| First appearance and plea | Appears with you, enters the plea you choose, addresses bail and conditions | §§ 46-7-102, 46-12-204 |
| Discovery | Requests the reports, statements, video, and test records from the prosecutor | §§ 46-15-322, 61-8-1019(3) |
| Evidence review | Checks the stop, the roadside tests, and the breath or blood test against the records | §§ 46-5-401, 61-8-1018 |
| Motions | Files written motions to suppress or dismiss by the omnibus hearing | §§ 46-13-101, 46-13-110, 46-13-302 |
| Negotiation | Discusses a resolution with the prosecutor and brings every offer to you | § 46-12-211 |
| Trial | Tries the case to a jury of six, or to the judge if a jury is waived | § 46-17-201 |
| Sentencing and license | Presents your side on the sentence and asks for a probationary license recommendation | §§ 61-8-1007, 61-8-1010 |
Not every case goes through every stage. Our page on the DUI court process explains the hearings themselves. This page is about the work around them.
First Days: Deadlines and Preservation
If you refused a test, the first task is the license petition. It must be filed in the district court of the county of arrest within 30 days after the officer gave notice of the right to a hearing, and the court may stay the suspension while it is pending (MCA § 61-8-1017(1), (3)). The hearing is limited to whether the officer had a basis for requesting the test and whether you refused (MCA § 61-8-1017(4)).
The second task is preservation. Patrol and body camera footage, jail video, and recordings from private businesses are not all kept for the same length of time, and no statute we rely on here sets one period for all of them. A written request early is the safe course. The third is your release conditions, which a court may set to ensure your appearance and public safety (MCA § 46-9-108) and which you need to follow exactly. See when to hire a DUI lawyer for the full list of early dates.
Getting the State's Evidence
Upon request, the prosecutor must make available for examination and reproduction the names and statements of the State's witnesses, the defendant's own statements, reports of experts and the results of scientific tests, documents and objects the State may use, and all material that tends to mitigate or negate guilt or reduce the potential sentence (MCA § 46-15-322(1)). The duty reaches material held by others who took part in the investigation (MCA § 46-15-322(4)).
In a DUI that usually means the citation and reports, dispatch records, video, the breath test record and the instrument's certification records or the laboratory file for blood, and your driving record.
Reviewing the Stop, the Tests, and the Number
This is the center of the job. Each piece is checked against the standard it had to meet:
- The stop. Whether the officer had particularized suspicion (MCA § 46-5-401). See challenging the traffic stop.
- The roadside tests. Whether they were given and scored the way officers are trained. See challenging field sobriety tests.
- The breath test. Whether the operator was certified and the instrument was within its field certification. See challenging the breath test.
- The blood test. Who drew it, how it was handled, and what the laboratory reported. See challenging the blood test.
- The charge. Whether the evidence fits the subsection charged, and whether any prior conviction was counted correctly under MCA § 61-8-1011.
Misty Gaubatz is certified in NHTSA Standardized Field Sobriety Testing and has worked inside a local prosecutor's office, which is useful background for this part of the review.
Motions and the Omnibus Hearing
If the review finds a legal problem, it has to be raised in time. Any defense, objection, or request that can be decided without a trial must be raised at or before the omnibus hearing unless the law provides otherwise, and failing to raise it on time is a waiver, though a court may grant relief for cause (MCA § 46-13-101). Pretrial motions are generally in writing with a statement of supporting facts.
A motion to suppress asks the court to exclude evidence obtained by an unlawful search or seizure. If it is granted, that evidence is not admissible at trial (MCA § 46-13-302).
Negotiating, and Advising You on the Offer
Montana law allows the prosecutor and defense to discuss an agreement for a plea to the charged offense or to a lesser or related offense (MCA § 46-12-211(1)). A DUI prosecution cannot be deferred (MCA § 46-16-130(4)) and a DUI sentence cannot be deferred (MCA § 61-8-1011(4)), so the realistic options are narrower than in some other kinds of cases. Our page on reckless driving reductions explains what a reduction is and is not.
The lawyer's role is to tell you what the offer means, what the alternatives are, and what they recommend. The decision on the plea is yours (Rule 1.2(a)).
Trial, Sentencing, and the License
If you choose a trial, a misdemeanor DUI is tried to a jury of six unless the parties agree to waive a jury (MCA § 46-17-201). The lawyer prepares witnesses, cross-examines the officer and any analyst, and argues the law.
If there is a conviction, the sentence is set within the ranges in MCA § 61-8-1007, and the lawyer presents the facts that bear on it. This is also the moment to ask the court to recommend a probationary license, because for a first offense the court's recommendation is what opens that door (MCA § 61-8-1010(1)).
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case, and no description of a lawyer's work is a prediction of any result.