Legal Question in Criminal Law in Montana

Re: Minor's rights regarding breathalyzer test

This is an area in which there is a great deal of misunderstanding.

Operating a motor vehicle on the streets and highways of a state is a privilege, not a right. In the exercise of that privilege, one impliedly agrees to the administration of a breath test when approached to do so by law enforcement when there is a reasonable basis to believe that the operator is under the influence. The refusal to take the test will result in the suspension of driving privileges.

Since "implied consent" is given before driving begins, there can be no unlawful taking or "search" when the test is administered.

Miranda warnings are required to be given by law enforcement only when (1) a person is under arrest AND (2) law enforcement questions that person to obtain a statement or information which will later be used against him. If there is no questioning, or no arrest, Miranda warnings are not required.

Miranda warnings are never required prior to the administration of a breath or blood test to determine blood alcohol levels, and the results of such tests are not suppressible for lack of such warnings nor is there a legally impermissible search in such instances.