45-2-202. Voluntary act. A material element of every offense is a voluntary act, which includes an omission to perform a duty that the law imposes on the offender and that the offender is physically capable of performing, except for deliberate homicide under 45-5-102(1)(b) for which there must be a voluntary act only as to the underlying felony. Possession is a voluntary act if the offender knowingly procured or received the thing possessed or was aware of the offender's control of the thing for a sufficient time to have been able to terminate control.
Montana Code Annotated
Mont. Code Ann. § 45-2-202 (2026)
Voluntary Act
✓ current as of May 2026
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TITLE 45. CRIMES
CHAPTER 2. GENERAL PRINCIPLES OF LIABILITY
Part 2. Other Factors Affecting Individual Liability
Voluntary Act
History: En. 94-2-102 by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, 94-2-102; amd. Sec. 3, Ch. 610, L. 1987; amd. Sec. 1635, Ch. 56, L. 2009.
Notes of Decisions
Cited in 22
cases (4 in the last 5 years), 1983–2025 · leading case: State v. Korell, 690 P.2d 992 (Mont. 1984).
State v. Korell, 690 P.2d 992 (Mont. 1984). “Section 45-2-202, MCA, provides that "[a] material element of every offense is a voluntary act.”
City of Missoula v. Paffhausen, 2012 MT 265 (Mont. 2012). “Section 45-2-101(33), MCA, defines an “involuntary act” as an act that is: (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; or (d) a bodily movement that otherwise is not a…”
State v. Rosling, 2008 MT 62 (Mont. 2008). “The detective further testified that the forensic report on the urine sample collected from Rosling indicated that Rosling had methamphetamine in his system.”
State Ex Rel. Kuntz v. Montana Thirteenth Jud. Dist. Court, 2000 MT 22 (Mont. 2000). “See § 45-2-202, MCA. As a starting point in our analysis, the parties here have identified what is often referred to as "the American bystander rule.”
In re R.L.H., 116 P.3d 791 (Mont. 2005). “Section 45-2-202, MCA. Based on Montana’s statutory definitions we conclude that while the presence of a dangerous drug in one’s body constitutes a circumstance that indicates prior possession of that substance, it is insufficient, standing alone, to sustain a conviction for…”
State v. A. Porter, 2018 MT 16 (Mont. 2018). “The State charged Porter with felony aggravated assault under § 45-2-202, MCA. ¶3 The case went to trial in September 2015.”
State v. Hocter, 2011 MT 251 (Mont. 2011). “” Section 45-2-202, MCA. A ‘Voluntary act” includes an omission or failure “to perform a duty that the law imposes on the offender and that the offender is physically capable of performing.”
State v. Courchene, 847 P.2d 271 (Mont. 1992). “Did the District Court err in failing to instruct the jury on the element of voluntariness? Courchene contends that Section 45-2-202, MCA, provides that a material element of every offense is a voluntary act and the District Court has the responsibility to instruct the jury on…”
State v. R. Pierre, 2020 MT 160 (Mont. 2020). “, ¶ 18 (citing §§ 45-2-202, -301, -302, 1-3-211, -217, and 45-4-102(1), MCA).”
State v. Zampich, 667 P.2d 955 (Mont. 1983). “” Section 45-2-202, MCA. That instruction properly called the jury’s attention to the psychological evidence defense counsel had marshalled.”
State v. Ahto, 1998 MT 200 (Mont. 1998). “bodily injury to another with a weapon ....’’More specifically, § 45-2-101(76), MCA, defines “weapon” as “any instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury.”
Matter of R.L.H., 2005 MT 177 (Mont. 2005). “Section 45-2-202, MCA. Based on Montana’s statutory definitions we conclude that while the presence of a dangerous drug in one’s body constitutes a circumstance that indicates prior possession of 7 that substance, it is insufficient, standing alone, to sustain a conviction for…”
— Mont. Code Ann. § 45-2-202(2) — 1 case
State v. Ahto, 1998 MT 200 (Mont. 1998). “bodily injury to another with a weapon ....’’More specifically, § 45-2-101(76), MCA, defines “weapon” as “any instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury.”
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