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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27056
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My nephew was arrested in Montana, July 2011. Although he did

Customer Question

My nephew was arrested in Montana, July 2011. Although he did the breathalyzer and passed he was tased and his blood was drawn. He was charged with a dui, even though he has not received results of test. He has not been convicted yet, his court date is February 2012, but he was ordered to undertake daily tests twice a day at his expense, under the "24/7 aggravated 2nd pending dui law" that passed and became effective in Montana on October o1, 2011. Are the conditions imposed on him legal and how can they take his blood when he didnt refuse the breathalyzer?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.
Hi Jacustomer,

They can take his blood because every state, including Montana has an implied consent law which means that a driver must test if the police feel it's necessary. It looks to me as if the police are screening for the presence of substances other than alcohol, which would be why they feel a blood test was necessary even though he passed the the breathalyzer.

There were DUI cases before the invention of the breathalyzer and a person can be charged with DUI on the basis of signs and symptoms that most people would be able to recognize as likely intoxication. If the lab comes back negative for controlled substances, they prosecutor will not be able to sustain these charges, and the case against him will be released.

Meanwhile, if he was tased and does not believe it happened under circumstances that made such a police action necessary, he can lodge a complaint with Internal Affairs and also with the Montana Attorney General's office. That will launch an investigation into their use of excessive force , which would be helpful if he thinks that one day down the road, he might want to find a civil right's lawyer and sue them for brutality.

I have found nothing on the web to indicate that that the requirements of Montana's aggravated 2nd DUI law is unconstitutional.
Customer: replied 5 years ago.
You didn't answer my question. He was arrested in July 2011, is it legal for prosecutor/court to order any requirements of Montanas 2nd dui law that passed, effective October 2012? I don't know if this makes a difference, I am sure it shouldn't but this is happening in Tribal court.
Expert:  Zoey_ JD replied 5 years ago.

This is the first time that you indicated that this was in Tribal rather than state court. I'm sure it does make a difference because on tribal land our laws don't apply.

I am sorry but I will have to opt out of this question as I have had no experience with tribial law at all. If a criminal expert here knows tribal law, he will be able to assist.

Good luck!
Customer: replied 5 years ago.
Seriously? Our particular Tribes are under State Jurisdiction as far as DUI's. The reason I mentioned Tribal Court is simply because they are a sleazy operation. So you cant answer the question of if its legal to put conditions on a person who violated a law before the law became effective?
Expert:  Zoey_ JD replied 5 years ago.

Like I said, I've never had any dealings with tribal court, so I wasn't aware even that they were under state jurisdiction as far as DUI. Everything I have heard about tribal court is that the case will come out the way the tribe wishes it to, because tribal members do not have to be bound by our laws. That may be just a nicer way of saying the same thing you did about sleazy operations.

I don't know where my brain was yesterday, and I missed the fact entirely that the arrest preceded the change in the Montana law. If a case is already open, as your nephew's was, at the time a new law was created, the defendant ends up grandfathered into the new law. It can be unfair -- such as when someone had an old dui and got past the lookback period, but now the state has a new law with lifetime lookback, for example, or in this case. But yes, it's perfectly legal. You see examples of it all over, such as with the people who thought they wouldn't have to register as a sex offender but who years later were required to do so because the new law grandfathered them in if their case was still open and they were on parole.

Customer: replied 5 years ago.
Relist: Inaccurate answer.
I wanted to know if it is legal to place conditions on a person by citing a law that didnt become effective until October 01 2011, my nephew got a dui in july 2011. my question wasnt answered. he didnt refuse the breathalyzer yet he was tased and his blood drawn withouy a warrant.
Expert:  Zoey_ JD replied 5 years ago.

See my last paragraph. Yes it's legal.Happens all the time. Ask drivers suddenly subjected to "lifetime lookback" periods on new DUI or sex offenders on parole who's been told they wouldn't have to register who now find themselves on lifetime registration because of the passage of new Federal legislation.

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