Montana Code Annotated 2015

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     61-8-465. Aggravated DUI. (1) A person commits the offense of aggravated driving under the influence if the person is in violation of 61-8-401, 61-8-406, or 61-8-411 and:
     (a) the person's alcohol concentration, as shown by analysis of the person's blood or breath, is 0.16 or more;
     (b) the person is under the order of a court or the department to equip any motor vehicle the person operates with an approved ignition interlock device;
     (c) the person's driver's license or privilege to drive is suspended, canceled, or revoked as a result of a prior violation of 61-8-401, 61-8-402, 61-8-406, or 61-8-411;
     (d) the person refuses to provide a breath or blood sample as required in 61-8-402 and the person's driver's license or privilege to drive was suspended, canceled, or revoked under 61-8-402 within 10 years of the commission of the present offense; or
     (e) the person has one prior conviction or pending charge for a violation of 45-5-106, 45-5-205, 61-8-401, 61-8-406, 61-8-411, or this section within 10 years of the commission of the present offense or has two or more prior convictions or pending charges, or any combination thereof, for violations of 45-5-106, 45-5-205, 61-8-401, 61-8-406, or 61-8-411.
     (2) Except as provided in subsection (6), a person convicted of a first violation of the offense of aggravated driving under the influence shall be punished by:
     (a) a fine of $1,000, except that if one or more passengers under 16 years of age were in the vehicle at the time of the offense, a fine of $2,000; and
     (b) a term of imprisonment for not less than 48 hours or more than 1 year, except that if one or more passengers under 16 years of age were in the vehicle at the time of the offense, a term of imprisonment for not less than 72 consecutive hours.
     (3) (a) Except as provided in subsection (6), a person convicted of a second violation of the offense of aggravated driving under the influence shall be punished by:
     (i) a fine of $2,500, except that if one or more passengers under 16 years of age were in the vehicle at the time of the offense, a fine of $5,000; and
     (ii) a term of imprisonment for not less than 15 days or more than 1 year, except that if one or more passengers under 16 years of age were in the vehicle at the time of the offense, a term of imprisonment for not less than 45 days.
     (b) Except for the minimum term of imprisonment provided in subsection (3)(a)(ii), the mandatory minimum imprisonment term may be suspended pending successful completion of court-ordered chemical dependency assessment, education, or treatment by the person.
     (c) The mandatory minimum imprisonment term may not be served under home arrest and may not be suspended unless the judge finds the imposition of the imprisonment sentence will pose a risk to the person's physical or mental well-being.
     (4) (a) Except as provided in subsection (6), a person convicted of a third violation of the offense of aggravated driving under the influence shall be punished by:
     (i) a fine of $5,000, except that if one or more passengers under 16 years of age were in the vehicle at the time of the offense, a fine of $10,000; and
     (ii) a term of imprisonment for not less than 40 consecutive days or more than 1 year, except that if one or more passengers under 16 years of age were in the vehicle at the time of the offense, a term of imprisonment for not less than 90 consecutive days.
     (b) Except for the minimum term of imprisonment provided in subsection (4)(a)(ii), the mandatory minimum imprisonment term may be suspended pending successful completion of court-ordered chemical dependency assessment, education, or treatment by the person.
     (c) The mandatory minimum imprisonment term may not be served under home arrest and may not be suspended unless the judge finds the imposition of the imprisonment sentence will pose a risk to the person's physical or mental well-being.
     (5) During the suspended sentence imposed by the court under subsection (3)(b) or (4)(b):
     (a) the person is subject to all conditions of the suspended sentence imposed by the court, including mandatory participation in drug or DUI courts if available;
     (b) the person is subject to all conditions of the 24/7 sobriety and drug monitoring program if available and if imposed by the court; and
     (c) if the person violates any condition of the suspended sentence or any treatment requirement, the court may impose the remainder of any imprisonment term that was imposed and suspended.
     (6) If the person has a prior conviction under 45-5-106, the person shall be punished as provided in 61-8-731 for a fourth or subsequent offense of driving under the influence of alcohol or drugs, with an excessive alcohol concentration, or under the influence of delta-9-tetrahydrocannabinol or aggravated driving under the influence.
     (7) Absolute liability, as provided for in 45-2-104, is imposed for a violation of this section.

     History: En. Sec. 1, Ch. 282, L. 2011; amd. Sec. 19, Ch. 153, L. 2013; amd. Sec. 1, Ch. 312, L. 2013; amd. Sec. 13, Ch. 424, L. 2015.

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