Montana Code 61-8-808. Right of appeal to court
61-8-808. Right of appeal to court. (1) Within 30 days after notice of the suspension and the right to a hearing has been given by the peace officer under 61-8-805 or 61-8-806, the person may file a petition to challenge the suspension in the district court in the county where the finding of 0.04 or more alcohol concentration or refusal was made.
Terms Used In Montana Code 61-8-808
- 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.
- Commercial motor vehicle: means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle:
(i)has a gross combination weight rating or a gross combination weight of 26,001 pounds or more, whichever is greater, inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds;
(ii)has a gross vehicle weight rating or a gross vehicle weight of 26,001 pounds or more, whichever is greater;
(iii)is designed to transport at least 16 passengers, including the driver;
(iv)is a school bus; or
(v)is of any size and is used in the transportation of hazardous materials. 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
- 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: means :
(i)a vehicle propelled by its own power and designed or used to transport persons or property on the highways of the state;
(ii)a quadricycle if it is equipped for use on the highways as prescribed in chapter 9; or
(iii)a golf cart only if it is equipped for use on the highways as prescribed in chapter 9 and is operated pursuant to 61-8-391 or by a person with a low-speed restricted driver's license. See Montana Code 61-1-101
- 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
- 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.
- ways of this state open to the public: means any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public. See Montana Code 61-8-101
(2)The court has jurisdiction and shall set the matter for hearing. The court shall give at least 10 days’ written notice to the county attorney of the county where the appeal is filed. The county attorney shall represent the state.
(3)The court shall take testimony and examine the facts of the case, except that:
(a)with regard to a suspension under 61-8-805, the issue is limited to whether the person was driving or had actual physical control of a commercial motor vehicle while the person’s alcohol concentration was 0.04 or more; and
(b)with regard to a suspension under 61-8-806, the issues are limited to whether a peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a commercial motor vehicle upon ways of this state open to the public while the person had a measurable or detectable alcohol concentration, whether the person was ordered to submit to a test, and whether the person refused to submit to the test.
(4)The court shall determine whether the petitioner is entitled to a commercial driver‘s license or is subject to suspension as provided in this part.