Senate Bill No. 303

Introduced By wilson, ryan, christiaens, swysgood, van valkenburg, keating, cocchiarella

A Bill for an Act entitled: An Act allowing a judge to require a person to have an ignition interlock device installed when the person is convicted two or more times of driving under the influence of alcohol or drugs or is convicted for the first time of operating a motor vehicle while having an alcohol concentration of 0.18 percent or more; providing a penalty for tampering with or attempting to circumvent the device; allowing the department of justice to reinstate the driving privileges of an ignition-interlock restricted offender upon proof of installation of the device; requiring ignition interlock restrictions to run parallel to time periods and conditions for license suspension or revocation for dui and bac offenders; directing the department of justice to adopt rules providing for approval of ignition interlock devices; amending sections 61-2-302, 61-5-208, 61-8-401, and 61-8-406, MCA; and providing effective dates.

WHEREAS, since the early 1980s, strict laws and extensive public awareness campaigns have helped reduce the traffic death toll attributed to drunken driving; and

WHEREAS, despite the progress that has been made in the battle against drunken driving, there remain on Montana's roads and highways a small group of hard-core drinkers who regularly drink to high levels of intoxication (over 0.15%) and still drive; and

WHEREAS, on a weekend night, these hard-core drunk drivers make up only 1% of all drivers, yet account for almost half of the driving fatalities; and

WHEREAS, approximately 80% of all drunk drivers killed on the nation's highways in 1995 had a blood alcohol concentration of 0.15% or higher, and to get to that level, a 160-pound man would have to consume more than six drinks in 1 hour; and

WHEREAS, approximately 50% of all fatally injured drunk drivers in 1995 had a blood alcohol concentration of 0.20% or higher, more than twice the legal limit in Montana; and

WHEREAS, these hard-core drinkers continue to drive even after steps have been taken, including license suspensions, fines, and incarceration, to remove them from the road; and

WHEREAS, proven technological approaches, such as court-ordered ignition interlocks, exist for limiting the opportunity of hard-core drinkers to drink and drive; and

WHEREAS, ignition interlock devices prevent a car from starting if the driver fails a car-mounted Breathalyzer test, and ignition interlock devices are a reliable, fair, and effective means of reducing repeat driving under the influence (DUI) offenses; and

WHEREAS, reduction of repeat DUI offenses will, over time, reduce one of the growing pressures for increased incarceration expenses impacting our local and state corrections systems; and

WHEREAS, ignition interlock devices can be an effective complement to treatment of alcohol-dependent persons and their families who also drive on the roads and highways of this state; and

WHEREAS, the incidence of recidivism is lower among offenders with ignition interlock devices in their vehicles; and

WHEREAS, the device serves as a constant reminder to a driver of the driver's drinking problem and the difficulties that have arisen from it; and

WHEREAS, having an ignition interlock device installed forces a driver to develop and practice strategies to avoid drinking and driving; and

WHEREAS, the device allows an offender to re-enter the driver licensing system legally, sober, and with insurance; and

WHEREAS, ignition interlock devices allow more offenders the opportunity to maintain employment; and

WHEREAS, regular maintenance of the ignition interlock device facilitates the monitoring of offenders and allows for periodic checks on attempts to circumvent the device; and

WHEREAS, the use of ignition interlock devices is legal in Montana, but the devices are not currently available throughout the state nor will they be consistently used in the state until installation of these devices is required by Montana courts responsible for sentencing DUI offenders.

STATEMENT OF INTENT

A statement of intent is required for this bill because [section 4] delegates authority to the department of justice to adopt rules regarding ignition interlock devices. The legislature intends that the department model rules after rules that have implemented similar statutes adopted in Washington, Idaho, Oregon, North Dakota, and 31 other states. The legislature further intends that the rules adopted governing approval of the ignition interlock devices be based on federal standards issued by the national highway traffic safety administration on "model specifications for breath alcohol ignition interlock devices", published in the Federal Register on April 7, 1992. Any changes in the federal standards regarding standards for alcohol ignition interlock devices must be reflected in the department's rules.

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

Section 1.  Ignition interlock device -- definition. "Ignition interlock device" means ignition equipment that:

(1) analyzes the breath to determine blood alcohol concentration;

(2) is approved by the department pursuant to [section 4]; and

(3) is designed to prevent a motor vehicle from being operated by a person who has consumed a specific amount of an alcoholic beverage.

Section 2.  Ignition interlock device -- assisting in starting and operating -- circumventing -- penalty. (1) It is unlawful for a person who is subject to a restriction under [section 8] to operate a motor vehicle not equipped with an ignition interlock device.

(2) A person may not knowingly assist a person who is restricted to the use of an ignition interlock device to start and operate the restricted person's vehicle.

(3) A person may not knowingly circumvent the operation of an ignition interlock device.

(4) A person convicted of a violation of this section shall be punished by a fine of not more than $500 or by imprisonment for not more than 6 months or both.

(5) This section does not apply if:

(a) the starting of a motor vehicle or the request to start a motor vehicle equipped with an ignition interlock device is done for the purpose of safety or mechanical repair of the device or the vehicle; and

(b) the person subject to the restriction does not operate the vehicle.

Section 3.  Department rules regarding ignition interlock devices. (1) The department shall adopt rules providing for the approval of ignition interlock devices and the installation, calibration, repair, and removal of approved devices.

(2) The department's rules must be based upon federal standards issued for similar devices.

(3) An ignition interlock device that is approved by the department must also:

(a) be designed so it does not impede safe operation of the vehicle;

(b) correlate well with the level established for alcohol impairment;

(c) work accurately and reliably in an unsupervised environment and under extreme weather conditions;

(d) require a deep lung breath sample or use an equally accurate measure of blood alcohol concentration equivalence;

(e) resist tampering and show evidence of tampering if it is attempted;

(f) be difficult to circumvent;

(g) minimize inconvenience of a sober user;

(h) operate reliably over the range of automobile environments and in connection with various manufacturing standards;

(i) be manufactured by a person who is adequately insured for product liability; and

(j) have a label affixed in a prominent location warning that a person who knowingly tampers with, circumvents, or otherwise misuses the device is subject to criminal prosecution.

Section 4.  Section 61-2-302, MCA, is amended to read:

"61-2-302.   Establishment of driver improvement program -- participation by offending drivers. (1) The department may establish by administrative rules a driver rehabilitation and improvement program or programs that may consist of classroom instruction in rules of the road, driving techniques, defensive driving, driver attitudes and habits, actual on-the-road driver's training, and other subjects or tasks designed to contribute to proper driving attitudes, habits, and techniques.

(2)  Official participation in the driver rehabilitation and improvement program is limited to those persons who are not subject to an ignition interlock restriction imposed under [section 8] and whose license to operate a motor vehicle in the state of Montana is:

(a)  subject to suspension or revocation as a result of a violation of the traffic laws of this state or, unless otherwise provided by the sentencing court, a violation of 45-5-624; or

(b)  revoked and they have:

(i)  completed at least 3 months of a 1-year revocation; or

(ii) completed 1 year of a 3-year revocation; and

(iii) met the requirements for reobtaining a Montana driver's license.

(3)  Notwithstanding any provision of this part inconsistent with any other law of the state of Montana, the enforcement of any suspension or revocation order that constitutes the basis for any person's participation in the driver rehabilitation and improvement program provided for in this section may be stayed if that person complies with the requirements established for the driver improvement program and meets the eligibility requirements of subsection (2).

(4)  In the event that a person's driver's license has been surrendered prior to before the person's selection for participation in the driver rehabilitation and improvement program, the license may be returned upon receipt of the person's agreement to participate in the program.

(5)  The stay of enforcement of any suspension or revocation order must be terminated and the order of suspension or revocation enforced if a person declines to participate in the driver rehabilitation and improvement program or fails to meet the attendance or other requirements established for participation in the program.

(6)  Nothing in this This part does not creates create a right to be included in any program established under this part.

(7)  The department may establish a schedule of fees that may be charged those persons participating in the driver improvement and rehabilitation program. The fees must be used to help defray costs of maintaining the program.

(8)  A person may be referred to this program by a driver improvement analyst, city judge, justice of the peace, youth court judge, judge of a district court of the state, or a hearing examiner of the department.

(9)   The department may issue a restricted probationary license to any person who enrolls and participates in the driver rehabilitation and improvement program. Upon issuance of a probationary license under this section, the licensee is subject to the restrictions set forth on the license.

(10) It is a misdemeanor for a person to operate a motor vehicle in any manner in violation of the restrictions imposed on a restricted license issued to the person under this section."

Section 5.  Section 61-5-208, MCA, is amended to read:

"61-5-208.   Period of suspension or revocation. (1) The department may not suspend or revoke a driver's license or privilege to drive a motor vehicle on the public highways for a period of more than 1 year, except as otherwise permitted by law.

(2)  A person whose license or privilege to drive a motor vehicle on the public highways has been suspended or revoked may not have the license, endorsement, or privilege renewed or restored unless the revocation was for a cause which has been removed. After the expiration of the period of the revocation or suspension, the person may make application for a new license or endorsement as provided by law but the department may not issue a new license or endorsement unless and until it is satisfied, after investigation of the driving ability of the person and upon a showing by its records or other sufficient evidence, that the person is eligible to be licensed to drive in Montana. When any person is convicted or forfeits bail or collateral not vacated for the offense of operating or being in actual physical control of a motor vehicle while under the influence of alcohol or any drug or a combination of alcohol or drugs or for the offense of operation of a motor vehicle by a person with alcohol concentration of 0.10 or more, the department shall, upon receiving a report of conviction or forfeiture of bail or collateral not vacated, suspend the driver's license or driving privilege of the person for a period of 6 months. Upon receiving a report of a conviction or forfeiture of bail or collateral for a second, third, or subsequent offense within 5 years of the first offense, the department shall revoke the license or driving privilege of the person for a period of 1 year, except that if the 1-year period passes and the person has not completed an alcohol information course, treatment, or both, as ordered by the sentencing court, the license revocation remains in effect until the course, treatment, or both are completed.

(3) (a) If a person pays the reinstatement fee required in 61-2-107 and provides the department proof of compliance with any ignition interlock restriction imposed under [section 8], the department shall stay the license suspension or revocation of a person who has been convicted of a violation of 61-8-401 or 61-8-406 and return the person's driver's license. The stay must remain in effect until the period of suspension or revocation has expired and any required alcohol information course, treatment, or both, have been completed.

(b) If the department receives notice from a court, peace officer, or ignition interlock vendor that the person has violated the ignition interlock restriction by, including but not limited to, operating a motor vehicle not equipped with the device, tampering with the device, or removing the device before the period of restriction has expired, the department shall lift the stay and reinstate the license suspension or revocation for the remainder of the time period. The department may not issue a probationary driver's license to a person whose license suspension or revocation has been reinstated due to violation of an ignition interlock restriction.

(3)(4)  The period for all revocations made mandatory by 61-5-205 is 1 year except as provided in subsection (2).

(4)(5)  The period of revocation for any person convicted of any offense which makes mandatory the revocation of the driver's license commences from date of conviction or forfeiture of bail.

(5)(6)  If a person is convicted of a violation of 61-8-401 or 61-8-406 while operating a commercial motor vehicle, the department shall suspend the person's driver's license as provided in 61-8-811 and subsection (2) of this section."

Section 6.  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, and [section 8] 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, 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 not give rise to any inference that the person was or was not under the influence of alcohol but such 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 combination of the two.

(6)  Each municipality in this state is given authority to enact 61-8-406, 61-8-408, 61-8-714, 61-8-722, 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.

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

Section 7.  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, and [section 8], 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 8.  Driving under the influence of alcohol or drugs -- driving with excessive alcohol concentration -- ignition interlock device required. (1) In addition to the punishments provided in 61-8-714 and 61-8-722, regardless of disposition, the court may restrict a defendant to only driving a motor vehicle equipped with a functioning ignition interlock device and require the defendant to pay the reasonable cost of leasing, installing, and maintaining the device if:

(a) the court determines that approved ignition interlock devices are reasonably available; and

(b) (i) the defendant's blood alcohol concentration at the time of the arrest was 0.18% or greater; or

(ii) the defendant previously has been convicted of a violation of 61-8-401 or 61-8-406.

(2) Any restriction imposed under this section must be included in a report of the conviction made by the court to the department in accordance with 61-11-101 and placed upon the person's driving record maintained by the department in accordance with 61-11-102.

(3) The duration of a restriction imposed under this section must run parallel to the time period for suspension or revocation of the driver's license of the defendant in accordance with 61-2-107, 61-5-205, and 61-5-208 and must be monitored by the department.

Section 9.  Codification instruction. (1) [Section 1] is intended to be codified as an integral part of Title 61, chapter 1, part 5, and the provisions of Title 61, chapter 1, part 5, apply to [section 1].

(2) [Sections 2, 3, and 8] are intended to be codified as an integral part of Title 61, chapter 8, and the provisions of Title 61, chapter 8, apply to [sections 2, 3, and 8].

Section 10.  Effective dates. (1) Except as provided in subsection (2), [this act] is effective July 1, 1997.

(2) [Section 3 and this section] are effective on passage and approval.

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