Mont. Code Ann. » TITLE 46. CRIMINAL PROCEDURE · CHAPTER 16. TRIAL · Part 1. General Provisions
Montana Code Annotated

Mont. Code Ann. § 46-16-122 (2026)

Absence Of Defendant From Trial

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 46
  3. CHAPTER 16
  4. Part 1
  5. 46-16-122 Absence of defendant from trial

TITLE 46. CRIMINAL PROCEDURE

CHAPTER 16. TRIAL

Part 1. General Provisions

Absence Of Defendant From Trial

46-16-122. Absence of defendant from trial. (1) In a misdemeanor case, if the defendant fails to appear in person, either at the time set for the trial or at any time during the course of the trial and if the defendant's counsel is authorized to act on the defendant's behalf, the court shall proceed with the trial unless good cause for continuance exists.

(2) If the defendant's counsel is not authorized to act on the defendant's behalf as provided in subsection (1) or if the defendant is not represented by counsel, the court, in its discretion, may do one or more of the following:

(a) order a continuance;

(b) order bail forfeited;

(c) issue an arrest warrant; or

(d) proceed with the trial after finding that the defendant had knowledge of the trial date and is voluntarily absent.

(3) After the trial of a felony offense has commenced in the defendant's presence, the absence of the defendant during the trial may not prevent the trial from continuing up to and including the return of a verdict if the defendant:

(a) has been removed from the courtroom for disruptive behavior after receiving a warning that removal will result if the defendant persists in conduct that is so disruptive that the trial cannot be carried on with the defendant in the courtroom; or

(b) is voluntarily absent and the offense is not one that is punishable by death.

(4) Nothing in this section limits the right of the court to order the defendant to be personally present at the trial for purposes of identification unless defense counsel stipulates to the issue of identity.

History: En. Sec. 127, Ch. 800, L. 1991; amd. Sec. 37, Ch. 262, L. 1993.

Notes of Decisions
Cited in 20 cases (4 in the last 5 years), 1993–2025 · leading case: State v. Weaver, 2008 MT 86, 179 P.3d 534.
Sort: Relevance Newest Treatment
State v. Weaver, 2008 MT 86, 179 P.3d 534. · cites it 17× “Weaver’s Position on Appeal ¶14 Section 46-16-122, MCA (1995), provides, in relevant part, as follows: (1) In a misdemeanor case, if the defendant fails to appear in person, either at the time set for the trial or at any time during the course of the trial and if the defendant’s…”
State v. Aceto, 2004 MT 247, 100 P.3d 629. · cites it 28× “¶ 23 Both Aceto and the State further rely on § 46-16-122(3), MCA, but disagree as to which subpart applies.”
State v. Clark, 2005 MT 169, 115 P.3d 208. · cites it 22× “¶2 We address the following issue: ¶3 Did the District Court err in affirming the Municipal Court’s decision to conduct Clark’s trial in absentia pursuant to §46-16-122, MCA? FACTUAL AND PROCEDURAL BACKGROUND ¶4 On December 5, 2001, Clark was arrested for careless driving,…”
State v. Michael H. Hass, 2011 MT 296, 265 P.3d 1221. · cites it 12× “¶22 In attempting to rebut Hass’s arguments, the State contends that the Justice Court properly tried Hass in absentia under §46-16-122, MCA. This statute provides that in a misdemeanor case where the defendant fails to appear in person, “if the defendant’s counsel is authorized…”
City of Missoula v. Cox, 2008 MT 364, 196 P.3d 452. · cites it 11× “¶13 Finally, Cox argues that because § 46-16-120, MCA, does not provide that a court can waive a defendant’s right to a jury trial as a penalty for failure to appear, under § 46-16-122(1), MCA, the only penalty the court can impose is to proceed with the jury trial in absentia.”
State v. McCarthy, 2004 MT 312, 101 P.3d 288. · cites it 5× “The pertinent portion states: (3) After the trial of a felony offense has commenced in the defendant’s presence, the absence of the defendant during the trial may not prevent the trial from continuing up to and including the return of a verdict if the defendant: (b) is…”
State v. Clark, 2006 MT 313, 149 P.3d 551. · cites it 8× “Also, § 46-16-122, MCA, expressly provides for a trial in absentia if the defendant fails to appear personally in a misdemeanor case and counsel is authorized to act on the defendant’s behalf.”
City of Kalispell v. Gabbert, 2014 MT 296, 338 P.3d 51. · cites it 7× “First, while § 46-16-122, MCA, authorizes a defendant to be tried in absentia on a misdemeanor charge, doing so is within the court’s discretion under the circumstances in subsection (2) of the statute, and is not required if good cause for a continuance exists under subsection…”
Rickett v. City of Billings, 864 P.2d 793 (Mont. 1993). · cites it 5× “That statute authorizes the court to do one or more of the following: 1) order a continuance; 2) order bail forfeited; 3) issue an arrest warrant; or 4) proceed with the trial after finding that the defendant had knowledge of the trial date and is voluntarily absent.”
State v. Hodge, 2014 MT 308, 339 P.3d 8. · cites it 2× “The court thus proceeded with trial in Hodge’s *127 absence pursuant to § 46-16-122(2)(d), MCA. The court ultimately found Hodge guilty of DUI per se (§ 61-8-402(1)(a), MCA) and driving the wrong direction on a one-way street (§ 61-8-327(2), MCA).”
Matter of Drivers License of Anders, 943 P.2d 978 (Mont. 1997). · cites it 2× “We determined that the district court’s options in response to a failure to appear were limited to those set forth in § 46-16-122(2), MCA, and, as a result, we held that the district court exceeded its authority in remanding to the city court for imposition or execution of…”
State v. J. McKnight, 2025 MT 288. · cites it 27× “In Clark, we upheld a decision to proceed with a trial in absentia, in accordance with § 46-16-122, MCA. Clark, ¶ 17. This Court affirmed the finding that Clark was voluntarily absent because he admitted himself into the hospital on the day of trial.”
Show all 20 citing cases →
Mont. Code Ann. § 46-16-122(1): 9 cases
City of Missoula v. Cox, 2008 MT 364, 196 P.3d 452. “¶13 Finally, Cox argues that because § 46-16-120, MCA, does not provide that a court can waive a defendant’s right to a jury trial as a penalty for failure to appear, under § 46-16-122(1), MCA, the only penalty the court can impose is to proceed with the jury trial in absentia.”
State v. Michael H. Hass, 2011 MT 296, 265 P.3d 1221. “¶22 In attempting to rebut Hass’s arguments, the State contends that the Justice Court properly tried Hass in absentia under §46-16-122, MCA. This statute provides that in a misdemeanor case where the defendant fails to appear in person, “if the defendant’s counsel is authorized…”
State v. Weaver, 2008 MT 86, 179 P.3d 534. “Weaver’s Position on Appeal ¶14 Section 46-16-122, MCA (1995), provides, in relevant part, as follows: (1) In a misdemeanor case, if the defendant fails to appear in person, either at the time set for the trial or at any time during the course of the trial and if the defendant’s…”
City of Kalispell v. Gabbert, 2014 MT 296, 338 P.3d 51. “First, while § 46-16-122, MCA, authorizes a defendant to be tried in absentia on a misdemeanor charge, doing so is within the court’s discretion under the circumstances in subsection (2) of the statute, and is not required if good cause for a continuance exists under subsection…”
State v. Clark, 2005 MT 169, 115 P.3d 208. “¶2 We address the following issue: ¶3 Did the District Court err in affirming the Municipal Court’s decision to conduct Clark’s trial in absentia pursuant to §46-16-122, MCA? FACTUAL AND PROCEDURAL BACKGROUND ¶4 On December 5, 2001, Clark was arrested for careless driving,…”
Mont. Code Ann. § 46-16-122(2): 5 cases
State v. Michael H. Hass, 2011 MT 296, 265 P.3d 1221. “¶22 In attempting to rebut Hass’s arguments, the State contends that the Justice Court properly tried Hass in absentia under §46-16-122, MCA. This statute provides that in a misdemeanor case where the defendant fails to appear in person, “if the defendant’s counsel is authorized…”
State v. Weaver, 2008 MT 86, 179 P.3d 534. “Weaver’s Position on Appeal ¶14 Section 46-16-122, MCA (1995), provides, in relevant part, as follows: (1) In a misdemeanor case, if the defendant fails to appear in person, either at the time set for the trial or at any time during the course of the trial and if the defendant’s…”
State v. Clark, 2005 MT 169, 115 P.3d 208. “¶2 We address the following issue: ¶3 Did the District Court err in affirming the Municipal Court’s decision to conduct Clark’s trial in absentia pursuant to §46-16-122, MCA? FACTUAL AND PROCEDURAL BACKGROUND ¶4 On December 5, 2001, Clark was arrested for careless driving,…”
Rickett v. City of Billings, 864 P.2d 793 (Mont. 1993). “That statute authorizes the court to do one or more of the following: 1) order a continuance; 2) order bail forfeited; 3) issue an arrest warrant; or 4) proceed with the trial after finding that the defendant had knowledge of the trial date and is voluntarily absent.”
Matter of Drivers License of Anders, 943 P.2d 978 (Mont. 1997). “We determined that the district court’s options in response to a failure to appear were limited to those set forth in § 46-16-122(2), MCA, and, as a result, we held that the district court exceeded its authority in remanding to the city court for imposition or execution of…”
Mont. Code Ann. § 46-16-122(2)(d): 7 cases
State v. Weaver, 2008 MT 86, 179 P.3d 534. “Weaver’s Position on Appeal ¶14 Section 46-16-122, MCA (1995), provides, in relevant part, as follows: (1) In a misdemeanor case, if the defendant fails to appear in person, either at the time set for the trial or at any time during the course of the trial and if the defendant’s…”
State v. Michael H. Hass, 2011 MT 296, 265 P.3d 1221. “¶22 In attempting to rebut Hass’s arguments, the State contends that the Justice Court properly tried Hass in absentia under §46-16-122, MCA. This statute provides that in a misdemeanor case where the defendant fails to appear in person, “if the defendant’s counsel is authorized…”
State v. Clark, 2005 MT 169, 115 P.3d 208. “¶2 We address the following issue: ¶3 Did the District Court err in affirming the Municipal Court’s decision to conduct Clark’s trial in absentia pursuant to §46-16-122, MCA? FACTUAL AND PROCEDURAL BACKGROUND ¶4 On December 5, 2001, Clark was arrested for careless driving,…”
State v. Hodge, 2014 MT 308, 339 P.3d 8. “The court thus proceeded with trial in Hodge’s *127 absence pursuant to § 46-16-122(2)(d), MCA. The court ultimately found Hodge guilty of DUI per se (§ 61-8-402(1)(a), MCA) and driving the wrong direction on a one-way street (§ 61-8-327(2), MCA).”
State v. Ziolkowski, 2014 MT 58, 321 P.3d 816.
Mont. Code Ann. § 46-16-122(3): 1 case
State v. Aceto, 2004 MT 247, 100 P.3d 629. “¶ 23 Both Aceto and the State further rely on § 46-16-122(3), MCA, but disagree as to which subpart applies.”
Mont. Code Ann. § 46-16-122(3)(a): 1 case
State v. Aceto, 2004 MT 247, 100 P.3d 629. “¶ 23 Both Aceto and the State further rely on § 46-16-122(3), MCA, but disagree as to which subpart applies.”
Mont. Code Ann. § 46-16-122(3)(b): 3 cases
State v. Aceto, 2004 MT 247, 100 P.3d 629. “¶ 23 Both Aceto and the State further rely on § 46-16-122(3), MCA, but disagree as to which subpart applies.”
State v. J. McKnight, 2025 MT 288. “In Clark, we upheld a decision to proceed with a trial in absentia, in accordance with § 46-16-122, MCA. Clark, ¶ 17. This Court affirmed the finding that Clark was voluntarily absent because he admitted himself into the hospital on the day of trial.”
State v. E. Dion, 2022 MT 118N, 510 P.3d 1252.
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