Senate Bill No. 81

Introduced By swysgood

By Request of the Department of Justice



A Bill for an Act entitled: "An Act generally revising the laws pertaining to the licensing and operation of commercial motor vehicles; clarifying the definition of "motor vehicle"; amending the definition of "commercial motor vehicle" to include combination vehicles with towed units rated greater than 10,000 pounds; excluding from licensure certain vehicles operated in intrastate commerce; allowing release of accident reports to governmental agencies for motor carrier safety monitoring and roadway design purposes; clarifying license suspension for serious traffic violations; revising procedural aspects of commercial motor vehicle implied consent and 0.04 alcohol concentration statutes; increasing the license suspension period for second or subsequent violations of out-of-service orders; and amending sections 61-1-102, 61-1-134, 61-5-104, 61-7-114, 61-8-803, 61-8-805, 61-8-806, 61-8-808, and 61-8-812, MCA."



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



Section 1.  Section 61-1-102, MCA, is amended to read:

"61-1-102.   Motor vehicle. "Motor vehicle" means a vehicle propelled by its own power and designed primarily or used to transport persons or property upon the highways of the state, except that for. For the purpose of chapter 3, the term also includes trailers, semitrailers, and housetrailers. For the purpose of chapter 3, parts 1 and 2, the term also includes campers. The term does not include a bicycle as defined in 61-1-123."



Section 2.  Section 61-1-134, MCA, is amended to read:

"61-1-134.   Commercial motor vehicle defined -- exceptions. (1) Except as provided in subsection (2), "commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle:

(a)  has a gross combination weight rating or, in the absence of a gross combination weight rating, a declared weight of 26,001 pounds or more inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds;

(b) has a gross vehicle weight or manufacturer's rated capacity of 26,001 pounds or more;

(b)(c)  is designed or used to transport more than 15 16 passengers or more, including the driver;

(c)(d)  is a school bus as defined in 20-10-101; or

(d)(e)  is of any size and is used to transport any quantity or form of hazardous material required to be placarded pursuant to Title 49, Code of Federal Regulations.

(2)  The following vehicles are not commercial motor vehicles:

(a)  a vehicle exempt from taxation, used for firefighting, and bearing Montana tax-exempt plates;

(b)  a police emergency response vehicle; or

(c)  a vehicle:

(i)  controlled and operated by a farmer or person employed by a farmer;

(ii) used to transport farm products, farm machinery, or farm supplies within Montana or within 150 miles of the farm headquarters; and

(iii) not used to transport goods for compensation or hire.

(3)  For purposes of this section, "farmer" means a person who operates a farm or who is directly involved in the cultivation of land or crops or the raising of livestock owned by or under the direct control of that person."



Section 3.  Section 61-5-104, MCA, is amended to read:

"61-5-104.   Exemptions. (1) The following persons are exempt from licensure under this chapter:

(a)  a person who is a member of the armed forces of the United States while operating a motor vehicle owned by or leased to the United States government and being operated on official business;

(b)  a person who is a member of the armed forces of the United States on active duty in Montana who holds a valid license issued by another state and the spouse of the person who holds a valid license issued by another state and who is not employed in Montana, except as a member of the armed forces. If a spouse of a member of the armed forces becomes gainfully employed in Montana, the spouse must be licensed, as required by 61-5-102, within 90 days of becoming employed.

(c)  a person on active duty in the armed forces of the United States and in immediate possession of a valid license issued to that person in a foreign country by the armed forces of the United States, for a period of 45 days from the date of the person's return to the United States;

(d)  a person while driving or operating any who temporarily drives, operates, or moves a road machine, farm tractor, or implement of husbandry temporarily operated or moved for use in intrastate commerce on a highway;

(e)  a person who is a locomotive engineer, assistant engineer, conductor, brakeman, railroad utility person, or other member of the crew of a railroad locomotive or train being operated upon rails, including operation on a railroad crossing a public street, road, or highway. A person employed as described in this subsection is not required to display a driver's license to a law enforcement officer in connection with the operation of a railroad locomotive or train within Montana.

(2)  A nonresident who is at least 15 years of age and who is in immediate possession of a valid operator's license issued to the nonresident by the nonresident's home state or country may operate a motor vehicle, except a commercial motor vehicle, in this state.

(3)  A nonresident not otherwise exempt from the licensing requirements of 49 CFR, part 391 383, and in immediate possession of a valid commercial driver's license issued to the nonresident by the nonresident's home state or country may operate a commercial motor vehicle in this state.

(4)  A nonresident who is at least 18 years of age, whose home state or country does not require the licensing of operators, may operate a motor vehicle as an operator only, for a period of not more than 90 days in any calendar year, if the motor vehicle is registered in the home state or country of the nonresident.

(5)  A driver's license issued under this chapter to any a person who enters the United States armed forces, if valid and in effect at the time that the person enters the service, continues in effect so long as the service continues, unless the license is sooner suspended, revoked, or canceled for a cause as provided by law, and for not up to exceed 30 days following the date on which the licensee is honorably separated from the service. During the 30-day period, the license is valid only when the license and the licensee's discharge, separation, leave, or furlough papers are in the licensee's immediate possession."



Section 4.  Section 61-7-114, MCA, is amended to read:

"61-7-114.   Accident reports confidential. (1) All required accident reports and supplemental reports shall must be without prejudice to the individual reporting and shall must be for the confidential use of the department or other state governmental agencies having use for the records for accident prevention, roadway design, motor carrier safety monitoring purposes, or for the administration of the laws of this state relating to the deposit of security and proof of financial responsibility by persons driving or the owners of motor vehicles. The department may disclose the identity of a person involved in an accident when such the identity is not otherwise known or when such the person denies his presence being present at the accident.

(2)  Except as provided in this section, all accident reports and supplemental information filed as required by this part shall be are confidential and not open to general public inspection, nor shall copying. Copying of lists of such reports be is not permitted. The report and supplemental information filed by law enforcement personnel, as required by this part, may be examined and copied, without obtaining a court order, by:

(a) any a person named in the report or reports or by any;

(b) a driver, passenger, or pedestrian involved in the accident; or by his

(c) the representative of the person, driver, passenger, or pedestrian designated in writing, by;

(d) a party to a civil action arising from the accident,; or

(e) if the person is deceased, by his the executor or administrator or by the attorney representing his the executor or administrator if the person is deceased."



Section 5.  Section 61-8-803, MCA, is amended to read:

"61-8-803.   Suspension of commercial driver's license -- serious traffic violations. (1) If a commercial motor vehicle operator's record shows that the operator the department receives notice from a court or another licensing jurisdiction that a person holding a commercial driver's license has been convicted of a more than one serious traffic violation as defined in federal regulations in separate incidents within a 3-year period, the department shall suspend the person's commercial driver's license:

(1)(a)  for 60 days if the operator was convicted of two hazardous moving violations within 3 years upon receipt of notice of the second conviction; or

(2)(b)  for 120 days if the operator was convicted of three hazardous moving violations within 3 years upon receipt of notice of the third or subsequent conviction.

(2) For purposes of this section, "serious traffic violation" means conviction, when operating a commercial motor vehicle, of:

(a) speeding in excess of 15 miles an hour above a posted speed limit;

(b) reckless driving;

(c) improper or erratic traffic lane changes;

(d) following too closely; or

(e) a violation of a state law or local ordinance relating to the operation of a motor vehicle, excluding a parking, weight, or equipment violation, that arises in connection with a fatal accident."



Section 6.  Section 61-8-805, MCA, is amended to read:

"61-8-805.   Suspension for operating a commercial vehicle with alcohol concentration of 0.04 or more -- hearing. (1) A person whose alcohol concentration is 0.04 or more while the person drives or is in actual physical control of a commercial motor vehicle is subject to the suspension of the person's commercial driver's license. If the department receives a sworn report from a peace officer that the person was operating a commercial motor vehicle while the person's alcohol concentration was 0.04 or more, the department shall suspend the person's commercial driver's license The peace officer who determines that the person is operating a commercial motor vehicle with an alcohol concentration of 0.04 or more shall immediately seize the person's commercial driver's license and, on behalf of the department, give the person written notice of the license suspension and the right to a hearing under 61-8-808. Upon receipt of a certified report from the peace officer that the person was operating a commercial motor vehicle with an alcohol concentration of 0.04 or more, the department shall suspend the license, with no provision for a restricted probationary commercial license, for:

(a)  for 1 year, with no provision for a restricted probationary license or endorsement, upon receipt of the first report of a 0.04 or more alcohol concentration violation, except that if the offense violation occurred in a commercial motor vehicle transporting placardable hazardous materials, the suspension must be for 3 years; and

(b)  for life, with no provision for a restricted probationary license or endorsement, upon receipt of a second or subsequent 0.04 or more alcohol concentration violation report at any time as determined from the records of the department, unless a restricted license or endorsement is allowed by federal rules governing commercial drivers subject to federal rules allowing for driver rehabilitation and license reinstatement, if otherwise eligible, upon service of a minimum period of 10 years' suspension.

(2)  A peace officer who determines that a commercial motor vehicle operator has any a measured amount or detected presence of alcohol in the operator's body while operating a commercial motor vehicle shall place the commercial motor vehicle operator out of service as mandated by federal regulations for 24 hours.

(3)  The fact that any a person charged with a violation of the provisions of subsection (1) is entitled to use alcohol under the laws of Montana is not a defense against any a charge of violating the provisions of subsection (1).

(4)  The department shall immediately notify in writing any person whose commercial driver's license is suspended under this section. The person may file a petition within 30 days after the notice is given for a hearing in the matter in the district court in the county in which the finding of alcohol concentration was made. The court has jurisdiction and shall set the matter for hearing upon 10 days' written notice to the county attorney of the county in which the appeal is filed. The county attorney shall represent the state. The court shall take testimony and examine the facts of the case, except that the issue is limited to whether the person was driving or had actual physical control of a commercial motor vehicle while the person's alcohol concentration was 0.04 or more. The court shall determine whether the petitioner is entitled to a commercial driver's license or is subject to suspension as provided in this section. The provisions of 61-8-404 apply to any proceedings under this section."



Section 7.  Section 61-8-806, MCA, is amended to read:

"61-8-806.   Blood, breath, or urine tests of commercial vehicle operators -- procedure -- suspension. (1) A person who operates a commercial motor vehicle upon the ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401 and 61-8-805, to a test of the operator's person's blood, breath, or urine for the purpose of determining any a measured or detected amount or detected presence of alcohol in the operator's person's body if the operator person is requested to submit to the test by a peace officer having who has reasonable grounds to believe that the person to have been was driving or in actual physical control of a commercial motor vehicle upon the ways of this state open to the public while having any measurable or detectable a measured alcohol concentration or detected presence of alcohol. The peace officer may designate a blood, breath, or urine test to be administered and may request that the person submit to a preliminary alcohol screening test before a blood, breath, or urine test is taken.

(2)  A person who is unconscious or who is otherwise incapable of refusal is considered not to have withdrawn the consent provided in subsection (1).

(3)  If a commercial motor vehicle operator who is a resident of Montana person refuses upon the request of a peace officer to submit to a test designated by the officer as provided in subsection (1), the test may not be given. On behalf of the department, but the officer shall immediately seize the person's commercial driver's license and forward the license to the department, along with a sworn report certified under penalty of law that the officer had reasonable grounds to believe that the person had been was driving or was in actual physical control of a commercial motor vehicle upon ways of this state open to the public while having any a measurable or detectable alcohol concentration or detected presence of alcohol and that the person had refused to submit to the test upon the request of the officer. Upon receipt of the report, the department shall suspend the license for a period provided in subsection (5).

(4)  Upon seizure of a resident's person's commercial driver's license, the peace officer shall issue, on behalf of the department, a temporary 5-day noncommercial driving permit. The temporary driving permit is valid for 72 hours after issuance, effective 12 hours after the time of issuance, and shall provide the person with written notice of the license suspension and the right to a hearing under 61-8-808.

(5)  If a commercial motor vehicle operator refuses to submit to a test as provided in subsection (3), the department shall suspend the operator's commercial driver's license Upon receipt of the officer's certified report, the department shall suspend the person's commercial driver's license, with no provision for a restricted probationary commercial driver's license, for:

(a)  upon first refusal, for 1 year, with no provision for a restricted probationary license or endorsement upon a first refusal, except that if the offense violation occurred in a commercial motor vehicle transporting placardable hazardous materials, the suspension for a first refusal must be for 3 years;

(b)  life, upon a second or subsequent refusal at any time as determined from the records of the department, for life, with no provision for a restricted probationary license or endorsement unless allowed by federal rules governing commercial drivers subject to federal rules allowing for driver rehabilitation and license reinstatement, if otherwise eligible, upon service of a minimum period of 10 years' suspension.

(6)  A nonresident commercial motor vehicle operator who refuses to submit to a test as provided in subsection (3) is subject to suspension by the department as provided in subsection (5) and must be given a temporary driving permit as provided in subsection (4)."



Section 8.  Section 61-8-808, MCA, is amended to read:

"61-8-808.   Right of appeal to court. (1) The department shall immediately notify in writing any person whose commercial driver's license has been suspended under the provisions of 61-8-806, and the person may, within Within 30 days after receipt of notification notice of the suspension and the right to a hearing has been given by the peace officer under 61-8-805 or 61-8-806, the person may file a petition for a hearing on the matter in the district court in the county where the person resides or to challenge the suspension in the district court in the county where the finding of 0.04 or more alcohol concentration or refusal was made.

(2) The court has jurisdiction and shall set the matter for hearing upon. The court shall give at least 10 days' written notice to the county attorney of the county where the appeal is filed. The county attorney shall represent the state.

(3) The court shall take testimony and examine the facts of the case, except that:

(a) with regard to a suspension under 61-8-805, the issue is limited to whether the person was driving or had actual physical control of a commercial motor vehicle while the person's alcohol concentration was 0.04 or more; and

(b) with regard to a suspension under 61-8-806, the issues are limited to whether a peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a commercial motor vehicle upon ways of this state open to the public while the person had any a measurable or detectable alcohol concentration, whether the person was ordered to submit to a test, and whether the person refused to submit to the test.

(4) The court shall determine whether the petitioner is entitled to a commercial driver's license or is subject to suspension as provided in this part."



Section 9.  Section 61-8-812, MCA, is amended to read:

"61-8-812.   Suspension of commercial driver's license -- operation of out-of-service vehicle. (1) Upon receipt of information that a commercial motor vehicle operator notice from a court of competent jurisdiction or another licensing jurisdiction that a person holding a commercial driver's license has been convicted of a violation of operating a commercial motor vehicle that has been placed violating an out of service out-of-service order, the department shall suspend the operator's person's commercial driver's license for:

(a) 6 months for a first conviction and for;

(b) 1 year for a second or subsequent conviction if the vehicle being operated by the person at the time of the violation was not transporting placardable hazardous materials or was not designed or being used to transport more than 15 passengers, inclusive of the driver; and

(c) 3 years:

(i) for a second conviction if the vehicle:

(A) being operated at the time of the violation was transporting placardable hazardous materials; or

(B) was designed or being used to transport more than 15 passengers, inclusive of the driver; and

(ii) for a third or subsequent conviction.

(2)  For purposes of this section, an offender is considered to have been previously convicted if less than 10 years have elapsed between the commission of the present offense and a previous conviction.

(3) A temporary or probationary commercial driver's license may not be issued while a commercial driver's license is suspended under subsection (1)."

-END-