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:
     (a) for 1 year, with no provision for a restricted probationary license or endorsement, upon receipt of the first report, except that if the offense occurred in a commercial motor vehicle transporting 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 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.
     (2) A peace officer who determines that a commercial motor vehicle operator has any 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 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 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.

     History: En. Sec. 5, Ch. 378, L. 1989; amd. Sec. 3, Ch. 563, L. 1991; amd. Sec. 9, Ch. 789, L. 1991; amd. Sec. 30, Ch. 195, L. 1993.