Montana Code Annotated

Mont. Code Ann. § 46-4-301 (2026)

Issuance Of Subpoena

✓ current as of May 2026

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TITLE 46. CRIMINAL PROCEDURE

CHAPTER 4. INVESTIGATIVE PROCEDURES

Part 3. Investigative Subpoenas -- Reporting Requirement for Peace Officers

Issuance Of Subpoena

46-4-301. Issuance of subpoena. (1) Whenever a prosecutor has a duty to investigate alleged unlawful activity, any justice of the supreme court or district court judge of this state may cause subpoenas to be issued commanding the persons to whom they are directed to appear before the prosecutor and give testimony and produce books, records, papers, documents, and other objects as may be necessary and proper to the investigation.

(2) Except as provided in subsection (3), a subpoena may be issued only when it appears upon the affidavit of the prosecutor that the administration of justice requires it to be issued.

(3) In the case of constitutionally protected material, such as but not limited to medical records or information, a subpoena may be issued only when it appears upon the affidavit of the prosecutor that a compelling state interest requires it to be issued. In order to establish a compelling state interest for the issuance of such a subpoena, the prosecutor shall state facts and circumstances sufficient to support probable cause to believe that:

(a) an offense has been committed; and

(b) the information relative to the commission of that offense is in the possession of the person or institution to whom the subpoena is directed.

History: En. 95-720 by Sec. 1, Ch. 486, L. 1977; R.C.M. 1947, 95-720(1); amd. Sec. 19, Ch. 800, L. 1991; amd. Sec. 1, Ch. 318, L. 1999.

Notes of Decisions

Cited in 12 cases (3 in the last 5 years), 1984–2024 · leading case: State v. Nelson, 941 P.2d 441 (Mont. 1997).

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State v. Nelson, 941 P.2d 441 (Mont. 1997). · cites it 7× “” Section 46-4-301, MCA, provides the authority for the issuance of investigative subpoenas, as follows: Whenever a prosecutor has a duty to investigate alleged unlawful activity, any justice of the supreme court or district court judge of this state may cause subpoenas to be…”

State v. Bilant, 2001 MT 249 (Mont. 2001). · cites it 11× “We held a subpoena duces tecum seeking medical records requires greater justification for state access than the standard “administration of justice” rationale used to obtain non-private information under § 46-4-301, MCA. Nelson, 283 Mont. at 244 , 941 P.”

State v. Baldwin, 789 P.2d 1215 (Mont. 1990). · cites it 6× “Section 46-4-301, MCA, sets forth the criteria for issuance of an investigative subpoena.”

State v. D. Hesser, 2024 MT 134 (Mont. 2024). · cites it 7× “¶5 In his motion to suppress, Hesser argued that Trooper Arnold lacked authority to apply for an investigative subpoena because, pursuant to § 46-4-301(3), MCA, only a prosecutor may obtain an investigative subpoena.”

State v. Dolan, 940 P.2d 436 (Mont. 1997). · cites it 6× “” The issuance of an investigative subpoena is governed by § 46-4-301, MCA, which provides: Whenever a prosecutor has a duty to investigate alleged unlawful activity, any justice of the supreme court or district court judge of this state may cause subpoenas to be issued…”

State v. Ingraham, 1998 MT 156 (Mont. 1998). · cites it 2× “" Ingraham argued the subpoena was overly broad, and in violation of §§ 46-4-301 and -303, MCA. In a June 14, 1996, order, the District Court denied Ingraham's motion on the grounds that it was "unable to conclude .”

State v. Holmes, 687 P.2d 662 (Mont. 1984). · cites it 9× “Section 46-4-301, MCA, states: “Whenever the attorney general or county attorney has a duty to investigate alleged unlawful activity, any justice of the supreme court or district court judge of this state may cause subpoenas to be issued commanding the persons to whom they are…”

Oman v. State, 737 N.E.2d 1131 (Ind. 2000). · cites it 2× “085 (1994); Mont.Code Ann. § 46-4-301 (1997); Or.Rev.”

State v. Dobrowski, 2016 MT 261 (Mont. 2016). · cites it 2× “During trial, both Dobrowski’s counsel and the State questioned the defendant about his application and it was subsequently admitted during the State’s rebuttal.”

Harrington v. Madison Cnty. (D. Mont. 2021). · cites it 2× “; Mont. Code Ann. § 46-4-301 (3) (referring to “medical records or information” as “constitutionally protected material”); State v.”

State v. Baldwin (Mont. 1990). · cites it 3× “Section 46-4-301, MCA, sets forth the criteria for issuance of an investigative subpoena.”

— Mont. Code Ann. § 46-4-301(3) — 2 cases

State v. Bilant, 2001 MT 249 (Mont. 2001). “We held a subpoena duces tecum seeking medical records requires greater justification for state access than the standard “administration of justice” rationale used to obtain non-private information under § 46-4-301, MCA. Nelson, 283 Mont. at 244 , 941 P.”

State v. D. Hesser, 2024 MT 134 (Mont. 2024). “¶5 In his motion to suppress, Hesser argued that Trooper Arnold lacked authority to apply for an investigative subpoena because, pursuant to § 46-4-301(3), MCA, only a prosecutor may obtain an investigative subpoena.”

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