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The DUI Stop and the Test

MCA 61-8-1016 — implied consent, the right to refuse, and a suspension of up to 1 year for refusing

A person who drives or is in actual physical control of a vehicle on the ways of the state open to the public is considered to have consented to tests of blood, breath or oral fluid for alcohol or drugs, including a preliminary breath screening test.

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Who handles this in Montana: State Bar of Montana, Licensed Lawyer Montana; and legal aid programs and the state offices, listed in the Montana directory.

  • The officer informs the person of the right to refuse the test, and that refusing will suspend the license for up to 1 year.
  • A preliminary breath test does not satisfy the obligation to take the requested test.
  • If the person refuses, the officer may apply for a search warrant for a blood or oral fluid sample.
  • MCA 61-8-1016

A refusal is evidence. Proof that a person under arrest refused one or more tests is admissible in the criminal case arising from the driving.

  • MCA 61-8-1018

Testing is also limited by the Fourth Amendment. The Supreme Court of the United States has held that a breath test may be taken without a warrant as part of a lawful arrest for drunk driving and a blood test may not; that a driver may not be criminally punished for refusing a blood test where no warrant was obtained; and that the natural fall of alcohol in the blood does not by itself create an emergency excusing a warrant in every case, which is decided case by case on all the circumstances. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.

  • Birchfield v. North Dakota
  • Missouri v. McNeely
Sources for this section (4)
  1. MCA 61-8-1016 — Implied consent -- tests for alcohol or drugs -- refusal to submit -- administrative suspension of license
  2. MCA 61-8-1018 — Evidence admissible -- conditions of admissibility
  3. Birchfield v. North Dakota, 579 U.S. 438 (2016) — A breath test may be taken incident to arrest, a blood draw needs a warrant
  4. Missouri v. McNeely, 569 U.S. 141 (2013) — The natural fall of blood alcohol is not by itself an emergency justifying a warrantless draw

Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed Montana attorney.

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