Montana Code 61-8-1017. Right of appeal to court
61-8-1017. Right of appeal to court. (1) Within 30 days after notice of the right to a hearing has been given by a peace officer, a person may file a petition to challenge the license suspension or revocation in the district court in the county where the arrest was made.
Terms Used In Montana Code 61-8-1017
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Arrest: Taking physical custody of a person by lawful authority.
- Department: means the department of justice acting directly or through its duly authorized officers or agents. See Montana Code 61-1-101
- Driver: means a person who drives or is in actual physical control of a vehicle. See Montana Code 61-1-101
- Drug: means any substance that when taken into the human body can impair a person's ability to operate a vehicle safely. See Montana Code 61-8-1001
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Motor vehicle: has the meaning provided in 61-1-101. See Montana Code 61-8-1001
- Peace officer: has the meaning as defined in 46-1-202. See Montana Code 1-1-207
- person: means an individual, corporation, partnership, limited partnership, limited liability company, association, joint venture, state agency, local government unit, another state government, the United States, a political subdivision of this or another state, or any other legal or commercial entity. See Montana Code 61-1-101
- Revocation: means the termination by action of the department of a person's driver's license, privilege to drive a motor vehicle on the public highways, and privilege to apply for and be issued a driver's license for a period of time designated by law, during which the license or privilege may not be renewed, restored, or exercised. See Montana Code 61-1-101
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
- Suspension: means the temporary withdrawal by action of the department of a person's driver's license, privilege to drive a motor vehicle on the public highways, and privilege to apply for or be issued a driver's license for a period of time designated by law. See Montana Code 61-1-101
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(2)The court has jurisdiction and shall set the matter for hearing. The court shall give at least 10 days’ written notice of the hearing to the county attorney of the county where the arrest was made and to the city attorney if the incident leading to the suspension or revocation resulted in a charge filed in a city or municipal court. The county attorney or city attorney may represent the state. If the county attorney and the city attorney cannot agree on who will represent the state, the county attorney shall represent the state.
(3)Upon request of the petitioner, the court may order the department to return the seized license or issue a stay of the suspension or revocation action pending the hearing.
(4)The court shall take testimony, examine the facts of the case, and determine whether the petitioner is entitled to a license or whether the petitioner’s license is subject to suspension or revocation based on no other issues than:
(a)whether a peace officer had a basis for requesting a test or tests as set forth in 61-8-1016, and
(b)whether the person refused to submit to one or more tests designated by the peace officer.
(5)This section does not grant a right of appeal to a state court if a driver‘s license is initially seized, suspended, or revoked pursuant to a tribal law or regulation that requires alcohol or drug testing of motor vehicle operators.