House Bill No. 559

Introduced By grimes, clark



A Bill for an Act entitled: "An Act generally revising and recodifying penalty laws relating to alcohol or drugs and driving-related offenses; providing on second or subsequent convictions, that the remaining portion of a previously suspended sentence may be imposed if a defendant fails to complete monthly monitoring following a treatment program and that 6 months' additional monitoring may be imposed; deleting the requirement that driving under the influence or excessive alcohol concentration violations be considered confidential criminal justice information upon passage of 5 years without subsequent conviction; recognizing convictions from tribal courts or federal enclaves for the purpose of determining number of prior convictions and maintaining individual driving records; amending sections 46-18-201, 61-8-401, 61-8-406, 61-8-421, 61-8-422, 61-8-714, 61-8-722, and 61-11-101, MCA; and providing an applicability date."



Be it enacted by the Legislature of the State of Montana:



Section 1.  Section 46-18-201, MCA, is amended to read:

"46-18-201.   (Temporary) Sentences that may be imposed. (1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:

(a)  defer imposition of sentence, except as provided in 61-8-714 and 61-8-722 [section 11] for sentences for driving under the influence of alcohol or drugs or as provided in 61-6-304, for a period, except as otherwise provided, not exceeding 1 year for any misdemeanor or for a period not exceeding 3 years for any felony. The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition. Reasonable restrictions or conditions may include:

(i)  jail base release;

(ii) jail time not exceeding 180 days;

(iii) conditions for probation;

(iv) payment of the costs of confinement;

(v)  payment of a fine as provided in 46-18-231;

(vi) payment of costs as provided in 46-18-232 and 46-18-233;

(vii) payment of costs of court-appointed counsel as provided in 46-8-113;

(viii) with the approval of the facility or program, an order that the offender be placed in a community corrections facility or program as provided in 53-30-321;

(ix) community service;

(x)  home arrest as provided in Title 46, chapter 18, part 10;

(xi) any other reasonable conditions considered necessary for rehabilitation or for the protection of society;

(xii) payment of expenses for use of a judge pro tempore or special master as provided in 3-5-116; or

(xiii)  any combination of the restrictions or conditions in subsections (1)(a)(i) through (1)(a)(xii).

(b)  suspend execution of sentence for a period up to the maximum sentence allowed or for a period of 6 months, whichever is greater, for each particular offense. The sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence. Reasonable restrictions or conditions may include any of those listed in subsection (1)(a).

(c)  impose a fine as provided by law for the offense;

(d)  require payment of costs as provided in 46-18-232 or payment of costs of court-appointed counsel as provided in 46-8-113;

(e)  impose a county jail or state prison sentence, as provided in Title 45, for the offense or commit the defendant to the department of corrections for placement in an appropriate correctional institution or program;

(f)  with the approval of the facility or program, order the offender to be placed in a community corrections facility or program as provided in 53-30-321; or

(g)  impose any combination of subsections (1)(b) through (1)(f).

(2)  In addition to any penalties imposed pursuant to subsection (1), if the court finds that the victim of the offense has sustained a pecuniary loss, the court shall require payment of restitution to the victim as provided in 46-18-241 through 46-18-249. If the court determines that the defendant is unable to pay restitution, then it may impose, in addition to any other sentence, community service under 46-18-241.

(3)  If a financial obligation is imposed as a condition under subsection (1)(a), sentence may be deferred for a period not exceeding 2 years for a misdemeanor or for a period not exceeding 6 years for a felony, regardless of whether any other conditions are imposed.

(4)  If any restrictions or conditions imposed under subsection (1)(a) or (1)(b) are violated, the court shall consider any elapsed time and either expressly allow part or all of it as a credit against the sentence or reject all or part as a credit. The court shall state its reasons in the order. Credit, however, must be allowed for jail or home arrest time already served.

(5)  Except as provided in 45-9-202 and 46-18-222, the imposition or execution of the first 2 years of a sentence of imprisonment imposed under the following sections may not be deferred or suspended: 45-5-103, 45-5-202(3) relating to aggravated assault, 45-5-302(2), 45-5-303(2), 45-5-401(2), 45-5-502(3), 45-5-503(2) and (3), 45-9-101(2), (3), and (5)(d), 45-9-102(4), and 45-9-103(2).

(6)  Except as provided in 46-18-222, the imposition or execution of the first 10 years of a sentence of imprisonment imposed under 45-5-102 may not be deferred or suspended.

(7)  Except as provided in 46-18-222, imposition of sentence in a felony case may not be deferred in the case of a defendant who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended.

(8)  If the victim was less than 16 years old, the imposition or execution of the first 30 days of a sentence of imprisonment imposed under 45-5-503, 45-5-504, 45-5-505, or 45-5-507 may not be deferred or suspended. Section 46-18-222 does not apply to the first 30 days of the imprisonment.

(9)  In imposing a sentence on a defendant convicted of a sexual or violent offense as defined in 46-23-502, the court may not waive the registration requirement provided in 46-18-254, 46-18-255, and Title 46, chapter 23, part 5.

(10) A person convicted of a sexual offense, as defined in 46-23-502, and sentenced to imprisonment in the state prison shall enroll in the educational phase of the prison's sexual offender program.

(11) In sentencing a nonviolent felony offender, the court shall first consider alternatives to imprisonment of the offender in the state prison, including placement of the offender in a community corrections facility or program. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the offender is subsequently sentenced to the state prison or the women's correctional system, the court shall state its reasons why alternatives to imprisonment were not selected, based on the criteria contained in 46-18-225.

46-18-201.   (Effective July 1, 1997) Sentences that may be imposed. (1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:

(a)  defer imposition of sentence, except as provided in 61-8-714 and 61-8-722 [section 11] for sentences for driving under the influence of alcohol or drugs or as provided in 61-6-304, for a period, except as otherwise provided, not exceeding 1 year for any misdemeanor or for a period not exceeding 3 years for any felony. The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition. Reasonable restrictions or conditions may include:

(i)  jail base release;

(ii) jail time not exceeding 180 days;

(iii) conditions for probation;

(iv) payment of the costs of confinement;

(v)  payment of a fine as provided in 46-18-231;

(vi) payment of costs as provided in 46-18-232 and 46-18-233;

(vii) payment of costs of court-appointed counsel as provided in 46-8-113;

(viii) with the approval of the facility or program, an order that the offender be placed in a community corrections facility or program as provided in 53-30-321;

(ix) community service;

(x)  home arrest as provided in Title 46, chapter 18, part 10;

(xi) any other reasonable conditions considered necessary for rehabilitation or for the protection of society;

(xii) payment of expenses for use of a judge pro tempore or special master as provided in 3-5-116; or

(xiii)  any combination of the restrictions or conditions in subsections (1)(a)(i) through (1)(a)(xii).

(b)  suspend execution of sentence for a period up to the maximum sentence allowed or for a period of 6 months, whichever is greater, for each particular offense. The sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence. Reasonable restrictions or conditions may include any of those listed in subsection (1)(a).

(c)  impose a fine as provided by law for the offense;

(d)  require payment of costs as provided in 46-18-232 or payment of costs of court-appointed counsel as provided in 46-8-113;

(e)  impose a county jail or state prison sentence, as provided in Title 45, for the offense or commit the defendant to the department of corrections for placement in an appropriate correctional institution or program;

(f)  with the approval of the facility or program, order the offender to be placed in a community corrections facility or program as provided in 53-30-321; or

(g)  impose any combination of subsections (1)(b) through (1)(f).

(2)  In addition to any penalties imposed pursuant to subsection (1), if the court finds that the victim of the offense has sustained a pecuniary loss, the court shall require payment of restitution to the victim as provided in 46-18-241 through 46-18-249. If the court determines that the defendant is unable to pay restitution, then it may impose, in addition to any other sentence, community service under 46-18-241.

(3)  If a financial obligation is imposed as a condition under subsection (1)(a), sentence may be deferred for a period not exceeding 2 years for a misdemeanor or for a period not exceeding 6 years for a felony, regardless of whether any other conditions are imposed.

(4)  If any restrictions or conditions imposed under subsection (1)(a) or (1)(b) are violated, the court shall consider any elapsed time and either expressly allow part or all of it as a credit against the sentence or reject all or part as a credit. The court shall state its reasons in the order. Credit, however, must be allowed for jail or home arrest time already served.

(5)  Except as provided in 45-9-202 and 46-18-222, the imposition or execution of the first 2 years of a sentence of imprisonment imposed under the following sections may not be deferred or suspended: 45-5-103, 45-5-202(3) relating to aggravated assault, 45-5-302(2), 45-5-303(2), 45-5-401(2), 45-5-502(3), 45-5-503(2) and (3), 45-9-101(2), (3), and (5)(d), 45-9-102(4), and 45-9-103(2).

(6)  Except as provided in 46-18-222, the imposition or execution of the first 10 years of a sentence of imprisonment imposed under 45-5-102 may not be deferred or suspended.

(7)  Except as provided in 46-18-222, imposition of sentence in a felony case may not be deferred in the case of a defendant who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended.

(8)  If the victim was less than 16 years old, the imposition or execution of the first 30 days of a sentence of imprisonment imposed under 45-5-503, 45-5-504, 45-5-505, or 45-5-507 may not be deferred or suspended. Section 46-18-222 does not apply to the first 30 days of the imprisonment.

(9)  In imposing a sentence on a defendant convicted of a sexual or violent offense as defined in 46-23-502, the court may not waive the registration requirement provided in 46-18-254, 46-18-255, and Title 46, chapter 23, part 5.

(10) A person convicted of a sexual offense, as defined in 46-23-502, and sentenced to imprisonment in the state prison shall enroll in and complete the educational phase of the prison's sexual offender program.

(11) In sentencing a nonviolent felony offender, the court shall first consider alternatives to imprisonment of the offender in the state prison, including placement of the offender in a community corrections facility or program. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the offender is subsequently sentenced to the state prison or the women's correctional system, the court shall state its reasons why alternatives to imprisonment were not selected, based on the criteria contained in 46-18-225.

(12) Except as provided in 46-18-222, a provision of this section that conflicts with 46-18-219 does not apply to a person sentenced under 46-18-219."



Section 2.  Section 61-8-401, MCA, is amended to read:

"61-8-401.   Persons under the influence of alcohol or drugs. (1) It is unlawful and punishable as provided in 61-8-714, and 61-8-723, [sections 9, 10, and 11] [SECTION 13] for any person who is under the influence of:

(a)  alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public;

(b)  a dangerous drug to drive or be in actual physical control of a vehicle within this state;

(c)  any other drug to drive or be in actual physical control of a vehicle within this state; or

(d)  alcohol and any dangerous or other drug to drive or be in actual physical control of a vehicle within this state.

(2)  The fact that any person charged with a violation of subsection (1) is or has been entitled to use alcohol or such a drug under the laws of this state does not constitute a defense against any charge of violating subsection (1).

(3)  "Under the influence" means that as a result of taking into the body alcohol, drugs, or any combination thereof of alcohol and drugs, a person's ability to safely operate a motor vehicle has been diminished.

(4)  Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person at the time alleged, as shown by analysis of the person's blood, urine, or breath, shall give rise to the following inferences:

(a)  If there was at that time an alcohol concentration of 0.05 or less, it may be inferred that the person was not under the influence of alcohol.

(b)  If there was at that time an alcohol concentration in excess of 0.05 but less than 0.10, that fact shall may not give rise to any inference that the person was or was not under the influence of alcohol but such the fact may be considered with other competent evidence in determining the guilt or innocence of the person.

(c)  If there was at that time an alcohol concentration of 0.10 or more, it may be inferred that the person was under the influence of alcohol. The inference is rebuttable.

(5)  The provisions of subsection (4) do not limit the introduction of any other competent evidence bearing upon the issue of whether the person was under the influence of alcohol, drugs, or a any combination of the two alcohol and drugs.

(6)  Each municipality in this state is given authority to enact 61-8-406, 61-8-408, 61-8-714, 61-8-722, [sections 9, 10, and 11] [SECTION 13] and subsections (1) through (5) of this section, with the word "state" in 61-8-406 and subsection (1) of this section changed to read "municipality", as an ordinance and is given jurisdiction of the enforcement of the ordinance and of the imposition of the fines and penalties therein provided in those sections.

(7)  Absolute liability as provided in 45-2-104 will be imposed for a violation of this section."



Section 3.  Section 61-8-406, MCA, is amended to read:

"61-8-406.   Operation of vehicle by a person with alcohol concentration of 0.10 or more. It is unlawful and punishable as provided in 61-8-722 and, 61-8-723, [sections 9, 10, and 11] [SECTION 13] for any person to drive or be in actual physical control of a vehicle upon the ways of this state open to the public while the person's alcohol concentration, as shown by analysis of the person's blood, breath, or urine, is 0.10 or more. Absolute liability as provided in 45-2-104 will be imposed for a violation of this section."



Section 4.  Section 61-8-421, MCA, is amended to read:

"61-8-421.   Forfeiture procedure. (1) A motor vehicle forfeited under 61-5-212, 61-8-714, or 61-8-722 [section 10] must be seized by the arresting agency within 10 days after the conviction and disposed of as provided in Title 44, chapter 12, part 2. Except as provided in this section, the provisions of Title 44, chapter 12, part 2, apply to the extent applicable.

(2)  Forfeiture proceedings under 44-12-201(1) must be instituted by the arresting agency within 20 days after the seizure of the motor vehicle.

(3)  For purposes of 44-12-203 and 44-12-204, there is a rebuttable presumption of forfeiture. The owner of the motor vehicle may rebut the presumption by proving a defense under 61-8-714(3)(b)(ii) or 61-8-722(3)(b)(ii) [section 10(2)] or by proving that the owner was not convicted of a second or subsequent offense under 61-5-212 or of a third or subsequent offense under 61-8-401 or 61-8-406. It is not a defense that the convicted person owns the motor vehicle jointly with another person.

(4)  (a)  For purposes of 44-12-206, the proceeds of the sale of the motor vehicle must be distributed first to the holders of security interests who have presented proper proof of their claims, up to the amount of the interests or the amount received from the sale, whichever is less, and the remainder to the general fund of the arresting agency.

(b)  A holder of a security interest may petition the sentencing court for transfer of title to the motor vehicle to the holder of the security interest if the secured interest is equal to or greater than the estimated value of the motor vehicle.

(5)  Actions the court may take under 44-12-205(3) to protect the rights of innocent persons include return of the motor vehicle without a sale to an owner who is unable to present an adequate defense under this section but is found by the court to be without fault."



Section 5.  Section 61-8-422, MCA, is amended to read:

"61-8-422.   Prohibition on transfer, sale, or encumbrance of vehicles subject to seizure or forfeiture -- penalty. (1) It is unlawful for the owner of a vehicle subject to actions under 61-5-212(3) or (6) seizure under 61-5-212 or seizure and forfeiture under 61-8-714 or 61-8-722 [section 10] to transfer, sell, or encumber the owner's interest in that vehicle from the time of the owner's arrest or the filing of the underlying charge until the time that the underlying charge is dismissed, the owner is acquitted of the underlying charge, the issue of seizure or forfeiture is resolved by the sentencing court, or the underlying charge is otherwise terminated.

(2)  The prohibition against transfer of title may not be stayed pending the determination of an appeal from the conviction on the underlying charge.

(3)  A person who violates this section is guilty of a felony and upon conviction shall be imprisoned in the county jail for not more than 2 years, fined an amount not more than $20,000, or both."



Section 6.  Section 61-8-714, MCA, is amended to read:

"61-8-714.   Penalty for driving under influence of alcohol or drugs. (1) Except as provided in subsections (8) and (9), a A person convicted of a violation of 61-8-401 shall be punished by imprisonment in the county jail for not less than 24 consecutive hours or more than 60 days and shall be punished by a fine of not less than $100 or more than $500. The initial 24 hours of the imprisonment term must be served in the county jail and may not be served under home arrest. The imprisonment sentence may not be suspended unless the judge finds that the imposition of the imprisonment sentence will pose a risk to the defendant's physical or mental well-being.

(2)  Except as provided in subsection (8), on On a second conviction, the person shall be punished by a fine of not less than $300 or more than $500 and by imprisonment for not less than 7 days, at least 48 hours of which must be served consecutively, or more than 6 months. At least 48 hours of the imprisonment term must be served consecutively in the county jail and may not be served under home arrest. Except as provided in subsection (8), 3 Three days of the imprisonment sentence may not be suspended unless the judge finds that the imposition of the imprisonment sentence will pose a risk to the defendant's physical or mental well-being.

(3)  (a)  Except as provided in subsection (8), on On the third conviction, the person shall be punished by imprisonment for a term of not less than 30 days, at least 48 hours of which must be served consecutively, or more than 1 year and by a fine of not less than $500 or more than $1,000. At least 48 hours of the imprisonment term must be served consecutively in the county jail and may not be served under home arrest. Except as provided in subsection (8), notwithstanding any provision to the contrary providing for suspension of execution of a sentence imposed under this subsection, the The imposition or execution of the first 10 days of the imprisonment sentence imposed for a third offense that occurred within 5 years of the first offense may not be suspended.

(b)  (i)  On the third or subsequent conviction, the court, in addition to any other penalty imposed by law, shall order the motor vehicle owned and operated by the person at the time of the offense to be seized and subjected to the procedure provided under 61-8-421.

(ii)  A vehicle used by a person as a common carrier in the transaction of business as a common carrier is not subject to forfeiture unless it appears that the owner or other person in charge of the vehicle consented to or was privy to the violation. A vehicle may not be forfeited under this section for any act or omission established by the owner to have been committed or omitted by a person other than the owner while the vehicle was unlawfully in the possession of a person other than the owner in violation of the criminal laws of this state or the United States.

(iii)  Forfeiture of a vehicle encumbered by a security interest is subject to the secured person's interest if the person did not know and could not have reasonably known of the unlawful possession, use, or other act on which the forfeiture is sought.

(4)  On the fourth or subsequent conviction, the person is guilty of a felony offense and shall be punished [by imprisonment for a term of not less than 1 year or more than 10 years and by a fine of not less than $1,000 or more than $10,000] [AS PROVIDED IN SECTION 13]. Except as provided in subsection (8), notwithstanding any provision to the contrary providing for suspension of execution of a sentence imposed under this subsection, the The imposition or execution of the first 6 months of the imprisonment sentence imposed for a fourth or subsequent offense may not be suspended.

(5)  In addition to the punishment provided in this section, regardless of disposition, the defendant shall complete an alcohol information course at an alcohol treatment program approved by the department of public health and human services, which may include alcohol or drug treatment, or both. Alcohol or drug treatment, or both, must be ordered for a first-time offender upon a finding of chemical dependency made by a certified chemical dependency counselor pursuant to diagnosis and patient placement rules adopted by the department of public health and human services. On conviction of a second or subsequent offense under this section, in addition to the punishment provided in this section, regardless of disposition, the defendant shall complete an alcohol information course at an alcohol treatment program approved by the department of public health and human services, which must include alcohol or drug treatment, or both. As long as the alcohol information course is approved as provided in this subsection and the treatment is provided by a certified chemical dependency counselor, the defendant may attend the information course and treatment program of the defendant's choice. The treatment provided to the defendant at a treatment program must be at a level appropriate to the defendant's alcohol or drug problem, or both, as determined by a certified chemical dependency counselor pursuant to diagnosis and patient placement rules adopted by the department of corrections. Upon determination, the court shall order the defendant's appropriate level of treatment. If more than one counselor makes a determination as provided in this subsection, the court shall order an appropriate level of treatment based upon the determination of one of the counselors. On a second or subsequent conviction, the treatment program must be followed by monthly monitoring for a period of at least 1 year from the date of admission to the program. A court or counselor may not require attendance at a self-help program other than at an "open meeting" as that term is defined by the self-help program. A defendant may voluntarily participate in self-help programs. Each counselor providing education or treatment shall, at the commencement of the education or treatment, notify the court that the defendant has been enrolled in an alcohol information course or treatment program. If the defendant fails to attend the information course or treatment program, the counselor shall notify the court of the failure.

(6)  For the purpose of determining the number of convictions under this section, "conviction" means a final conviction, as defined in 45-2-101, in this state, conviction for a violation of a similar statute in another state, or a forfeiture of bail or collateral deposited to secure the defendant's appearance in court in this state or another state, which forfeiture has not been vacated. An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender's fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. If there has not been an additional conviction for an offense under this section for a period of 5 years after a prior conviction under this section, then all records and data relating to the prior conviction are confidential criminal justice information, as defined in 44-5-103, and public access to the information may only be obtained by district court order upon good cause shown.

(7)  For the purpose of calculating subsequent convictions under this section, a conviction for a violation of 61-8-406 also constitutes a conviction for a violation of 61-8-401.

(8)  The court may order that a term of imprisonment imposed under this section be served in another facility made available by the county and approved by the sentencing court. The defendant, if financially able, shall bear the expense of the imprisonment in the facility. The court may impose restrictions on the defendant's ability to leave the premises of the facility and require that the defendant follow the rules of that facility. The facility may be, but is not required to be, a community-based prerelease center as provided for in 53-1-203. The prerelease center may accept or reject a defendant referred by the sentencing court.

(9)  Except for the initial 24 hours on a first offense or the initial 48 hours on a second or subsequent offense, the court may order that a term of imprisonment imposed under this section be served by imprisonment under home arrest as provided in Title 46, chapter 18, part 10.

(10) A court may not defer imposition of sentence under this section."



Section 7.  Section 61-8-722, MCA, is amended to read:

"61-8-722.   Penalty for driving with excessive alcohol concentration. (1) Except as provided in subsection (9), a A person convicted of a violation of 61-8-406 shall be punished by imprisonment for not more than 10 days and shall be punished by a fine of not less than $100 or more than $500.

(2)  Except as provided in subsection (9), on On a second conviction of a violation of 61-8-406, the person shall be punished by imprisonment for not less than 48 consecutive hours, to be served in the county jail and not on home arrest, or more than 30 days and by a fine of not less than $300 or more than $500.

(3)  (a)  Except as provided in subsection (9), on On a third conviction of a violation of 61-8-406, the person shall be punished by imprisonment for not less than 48 consecutive hours, to be served in the county jail and not on home arrest, or more than 6 months and by a fine of not less than $500 or more than $1,000.

(b)  (i)  On the third or subsequent conviction, the court, in addition to any other penalty imposed by law, shall order the motor vehicle owned and operated by the person at the time of the offense to be seized and subjected to the procedure provided under 61-8-421.

(ii)  A vehicle used by a person as a common carrier in the transaction of business as a common carrier is not subject to forfeiture unless it appears that the owner or other person in charge of the vehicle consented to or was privy to the violation. A vehicle may not be forfeited under this section for any act or omission established by the owner to have been committed or omitted by a person other than the owner while the vehicle was unlawfully in the possession of a person other than the owner in violation of the criminal laws of this state or the United States.

(iii)  Forfeiture of a vehicle encumbered by a security interest is subject to the secured person's interest if the person did not know and could not have reasonably known of the unlawful possession, use, or other act on which the forfeiture is sought.

(4)  On the fourth or subsequent conviction, the person is guilty of a felony offense and shall be punished by imprisonment for a term of not less than 1 year or more than 10 years and by a fine of not less than $1,000 or more than $10,000. Except as provided in subsection (9), notwithstanding any other provision providing for suspension of execution of a sentence imposed under this subsection, the The imposition or execution of the first 6 months of the imprisonment sentence imposed for a fourth or subsequent offense may not be suspended.

(5)  The provisions of 61-5-205(2), 61-5-208(2), and 61-11-203(2)(d), relating to revocation and suspension of driver's licenses, apply to any conviction under 61-8-406.

(6)  In addition to the punishment provided in this section, regardless of disposition, the defendant shall complete an alcohol information course at an alcohol treatment program approved by the department of public health and human services, which must include alcohol or drug treatment, or both, in accordance with the provisions of 61-8-714. Each counselor providing education or treatment shall, at the commencement of the education or treatment, notify the court that the defendant has been enrolled in a course or treatment program. If the defendant fails to attend the course or the treatment program, the counselor shall notify the court of the failure.

(7)  For the purpose of determining the number of convictions under this section, "conviction" means a final conviction, as defined in 45-2-101, in this state or a similar statute in another state or a forfeiture of bail or collateral deposited to secure the defendant's appearance in court in this state or another state, which forfeiture has not been vacated. An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender's fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. If there has not been an additional conviction for an offense under this section for a period of 5 years after a prior conviction under this section, then all records and data relating to the prior conviction are confidential criminal justice information, as defined in 45-5-103, and public access to the information may only be obtained by district court order upon good cause shown.

(8)  For the purpose of calculating subsequent convictions under this section, a conviction for a violation of 61-8-401 also constitutes a conviction for a violation of 61-8-406.

(9)  The court may order that a term of imprisonment imposed under this section be served in another facility made available by the county and approved by the sentencing court. The defendant, if financially able, shall bear the expense of the imprisonment in the facility. The court may impose restrictions on the defendant's ability to leave the premises of the facility and require that the defendant follow the rules of that facility. The facility may be, but is not required to be, a community-based prerelease center as provided for in 53-1-203. The prerelease center may accept or reject a defendant referred by the sentencing court.

(10) Except for the initial 24 hours on a first offense or the initial 48 hours on a second or subsequent offense, the court may order that a term of imprisonment imposed under this section be served by imprisonment under home arrest as provided in Title 46, chapter 18, part 10.

(11) A court may not defer imposition of sentence under this section."



Section 8.  Section 61-11-101, MCA, is amended to read:

"61-11-101.   Report of convictions and suspension or revocation of driver's licenses -- surrender of licenses. (1) Whenever any person is convicted of any offense for which chapter 5 makes mandatory the suspension or revocation of the driver's license of the person by the department, the court in which such the conviction is had shall require the surrender to it of all driver's licenses then held by the person so convicted. The court shall thereupon, within 5 days, forward the license to the department and at the same time forward a record of such the conviction to the department, providing that if such the person does not possess a driver's license the court shall so indicate that fact in its report to the department.

(2)  Every court having jurisdiction over offenses committed under any act of this state or municipal ordinance regulating the operation of motor vehicles on highways shall forward, within 5 days, to the department a record of the conviction or forfeiture of bail, not vacated, of any person in the court for a violation of any such motor vehicle laws, other than regulations governing standing or parking, and may recommend the suspension of the driver's license of the person so convicted. The court may also recommend that the department issue a restricted probationary license on the condition that the individual comply with the requirement that he the person attend and complete an alcohol information course as provided in 61-8-714 and 61-8-722 [section 9]. The department shall issue a restricted probationary license unless the person otherwise is not entitled to a Montana driver's license. Upon issuance of a probationary license, the licensee is subject to the restrictions set forth thereon and may not operate a vehicle in violation of those restrictions.

(3)  Any court or other agency of this state, or a subdivision thereof of the state, which that has jurisdiction to take any action suspending, revoking, or otherwise limiting a license to drive shall report any such the action and the adjudication upon which it is based to the department within 5 days on forms furnished by the department.

(4) A tribal court of a federally recognized Indian reservation may report convictions under tribal law or regulation regulating the operation of motor vehicles to the department for recording purposes under this chapter. Convictions under federal law or regulations governing the operation of motor vehicles on federal enclaves may also be reported to the department under this section."



NEW SECTION. Section 9.  Driving under influence of alcohol or drugs -- driving with excessive alcohol concentration -- alcohol information course required. (1) (a) In addition to the punishments provided in 61-8-714 and 61-8-722 [AND SECTION 13], regardless of disposition, a defendant convicted of a violation of 61-8-401 or 61-8-406 shall complete an alcohol information course at an alcohol treatment program approved by the department of public health and human services, which may include alcohol or drug treatment, or both.

(b) As long as the alcohol information course is approved as provided in this section and the treatment is provided by a certified chemical dependency counselor, the defendant may attend the information course and treatment program of the defendant's choice. The treatment provided to the defendant at a treatment program must be at a level appropriate to the defendant's alcohol or drug problem, or both, as determined by a certified chemical dependency counselor pursuant to diagnosis and patient placement rules adopted by the department of public health and human services. Upon determination, the court shall order the defendant's appropriate level of treatment. If more than one counselor makes a determination as provided in this subsection, the court shall order an appropriate level of treatment based upon the determination of one of the counselors.

(c) Each counselor providing education or treatment shall, at the commencement of the education or treatment, notify the court that the defendant has been enrolled in an alcohol information course or treatment program. If the defendant fails to attend the information course or treatment program, the counselor shall notify the court of the failure.

(d) A court or counselor may not require attendance at a self-help program other than at an "open meeting" as that term is defined by the self-help program. A defendant may voluntarily participate in self-help programs.

(2) Alcohol or drug treatment, or both, must be ordered for a first-time offender convicted of a violation of 61-8-401 or 61-8-406 upon a finding of chemical dependency made by a certified chemical dependency counselor pursuant to diagnosis and patient placement rules adopted by the department of public health and human services.

(3) (a) On conviction of a second or subsequent offense under 61-8-714 or 61-8-722 for a violation of 61-8-401 or 61-8-406, in addition to the punishment provided in 61-8-714 or 61-8-722, regardless of disposition, the defendant shall complete an alcohol information course at an alcohol treatment program approved by the department of public health and human services, which must include alcohol or drug treatment, or both.

(b) (i) On a second or subsequent conviction, the treatment program provided for in subsection (1) must be followed by monthly monitoring for a period of at least 1 year from the date of admission to the program.

(ii) If a defendant fails to comply with the monitoring program imposed under subsection (3)(b)(i), the court shall revoke the suspended sentence, impose any remaining portion of the suspended sentence, and may include additional monthly monitoring for up to an additional 6 months.



NEW SECTION. Section 10.  Driving under influence of alcohol or drugs -- driving with excessive alcohol concentration -- forfeiture of vehicle. (1)  On the third or subsequent conviction of a violation of 61-8-401 or 61-8-406, the court, in addition to the punishments provided in 61-8-714 and 61-8-722 and any other penalty imposed by law, shall order the motor vehicle owned and operated by the person at the time of the offense to be seized and subjected to the procedure provided under 61-8-421.

(2)  A vehicle used by a person as a common carrier in the transaction of business as a common carrier is not subject to forfeiture unless it appears that the owner or other person in charge of the vehicle consented to or was privy to the violation. A vehicle may not be forfeited under this section for any act or omission established by the owner to have been committed or omitted by a person other than the owner while the vehicle was unlawfully in the possession of a person other than the owner in violation of the criminal laws of this state or the United States.

(3)  Forfeiture of a vehicle encumbered by a security interest is subject to the secured person's interest if the person did not know and could not have reasonably known of the unlawful possession, use, or other act on which the forfeiture is sought.



NEW SECTION. Section 11.  Driving under influence of alcohol or drugs -- driving with excessive alcohol concentration -- conviction defined -- place of imprisonment -- home arrest -- exceptions -- deferral of sentence not allowed. (1) (a)  For the purpose of determining the number of convictions under 61-8-714 or 61-8-722 for a violation of 61-8-401 or 61-8-406, "conviction" means a final conviction, as defined in 45-2-101, in this state; conviction for a violation of a similar statute or regulation in another state, a federal enclave, or a federally recognized Indian reservation; or a forfeiture of bail or collateral deposited to secure the defendant's appearance in court in this state, another state, a federal enclave, or a federally recognized Indian reservation, which forfeiture has not been vacated.

(b) An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender's fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes.

(c) A previous conviction under 61-8-714 or 61-8-722 for violation of 61-8-401 or 61-8-406 may be counted for purposes of determining the number of a subsequent conviction for violation of either 61-8-401 or 61-8-406.

(2)  [EXCEPT AS PROVIDED IN SECTION 13] The court may order that a term of imprisonment imposed under 61-8-714 or 61-8-722 be served in another facility made available by the county and approved by the sentencing court. The defendant, if financially able, shall bear the expense of the imprisonment in the facility. The court may impose restrictions on the defendant's ability to leave the premises of the facility and require that the defendant follow the rules of that facility. The facility may be, but is not required to be, a community-based prerelease center as provided for in 53-1-203. The prerelease center may accept or reject a defendant referred by the sentencing court.

(3) Subject to the limitations set forth in 61-8-714 and 61-8-722 concerning minimum periods of imprisonment, the court may order that a term of imprisonment imposed under either section be served by imprisonment under home arrest, as provided in Title 46, chapter 18, part 10.

(4)  A court may not defer imposition of sentence under 61-8-714 or 61-8-722 [OR SECTION 13].

(5) The provisions of 61-2-107, 61-2-302, 61-5-205(2), and 61-5-208(2), relating to suspension and revocation of driver's licenses and later reinstatement of driving privileges, apply to any conviction under 61-8-714 or 61-8-722 for a violation of 61-8-401 or 61-8-406.



NEW SECTION. Section 12.  Codification instruction. (1) [Sections 9, 10, and 11] are intended to be codified as an integral part of Title 61, chapter 8, part 7, and the provisions of Title 61, chapter 8, part 7, apply to [sections 9, 10, and 11].

(2) IF [SECTIONS 13 AND 14] ARE EFFECTIVE, THEN THEY ARE INTENDED TO BE CODIFIED AS AN INTEGRAL PART OF TITLE 61, CHAPTER 8, PART 7, AND THE PROVISIONS OF TITLE 61, CHAPTER 7, PART 8, APPLY TO [SECTIONS 13 AND 14].



NEW SECTION. SECTION 13.  COORDINATION. (1) (A) IF HOUSE BILL NO. 100 AND [THIS ACT] ARE BOTH PASSED AND APPROVED, THEN HOUSE BILL NO. 100 IS VOID, THE BRACKETED REFERENCES TO "SECTION 13" IN [THIS ACT] ARE EFFECTIVE, THE BRACKETED PHRASE REFERRING TO THE TERM OF IMPRISONMENT AND A FINE FOR A FOURTH CONVICTION IN 61-8-714 IS VOID, AND A NEW SECTION 13 IS ADDED TO [THIS ACT] THAT READS:

"NEW SECTION. Section 13.   Driving under influence of alcohol or drugs -- driving with excessive alcohol concentration -- penalty for fourth or subsequent offense. (1) (a) On the fourth or subsequent conviction under 61-8-714 or 61-8-722 for a violation of 61-8-401 or 61-8-406, the person shall be punished by imprisonment for a term of not less than 6 months or more than 13 months and by a fine of not less than $1,000 [$1,500] or more than $10,000. The imposition or execution of the imprisonment sentence imposed for a fourth or subsequent offense may not be suspended. The person is not eligible for parole.

(b) The court shall:

(i) specify one of the following facilities as the place in which the initial term of imprisonment must be served:

(A) a state prison;

(B) a regional correctional facility;

(C) a county jail;

(D) a boot camp, provided the prior approval of the department of corrections has been obtained;

(E) a prerelease center, provided the prior approval of the department of corrections has been obtained; or

(F) a state-approved public or private treatment facility; or

(ii) sentence the person to the department of corrections for placement in an appropriate correctional institution or program.

(c) Following initial placement of a defendant in the facility specified by the court in accordance with subsection (1)(b)(i), the department of corrections may, at its discretion, place the offender in another facility or program.

(2) (a) After serving the term of imprisonment imposed under subsection (1)(a), the person shall serve a supervised release term of not less than 1 year or more than 2 years. The release must be supervised by the department of corrections, which may order all or any portion of the supervised release term to be served under intensive supervision. The provisions of Title 46, chapter 23, part 10, relating to probation, apply to the supervised release.

(b) The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of supervised release. Reasonable restrictions or conditions may include:

(i) conditions for supervised release;

(ii) payment of a fine as provided in 46-18-231;

(iii) payment of costs as provided in 46-18-232 and 46-18-233;

(iv) payment of costs of court-appointed counsel as provided in 46-8-113;

(v) community service;

(vi) any other reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of society; or

(vii) any combination of the restrictions or conditions listed in subsections (2)(b)(i) through (2)(b)(vi).

(c) If a violation of the restrictions or conditions of the supervised release is established, the court may continue the period of supervised release or may require the defendant to serve the remainder of the supervised release sentence in one of the facilities set forth in subsection (1)(b). The court may credit the remainder of the supervised release or the time to be served in a facility set forth in subsection (1)(b) with all or part of the time already served on supervised release.

(3) The court shall order a person who is financially able to pay the costs of imprisonment and supervised release under this section and of the information course and treatment under [section 9]."

(b) If House Bill No. 100 and [this act] are not passed and approved, then the bracketed references to "section 13" in [this act] are void.

(2) If House Bill No. 208 and [this act] are both passed and approved, then the bracketed amount in [section 13] of [this act] is effective and a new section 14 is added to [this act] that reads:

"NEW SECTION. Section 14.  Driving under influence of alcohol or drugs -- driving with excessive alcohol concentration -- no suspension of fines -- community service as payment. (1) Except upon written findings of extenuating and mitigating circumstances by the court, no fine imposed under 61-8-714, 61-8-722, or [section 13] against a defendant convicted of a violation of 61-8-401 or 61-8-406 may be suspended.

(2) If the court determines that the person is unable to pay the fine, the court may sentence the person to supervised community service."



NEW SECTION. Section 14.  Applicability. [This act] applies to offenses committed on or after October 1, 1997.

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