House Bill No. 100

Introduced By soft

By Request of the Department of Corrections



A Bill for an Act entitled: "An Act revising the punishment for driving under the influence and for driving with an alcohol concentration in excess of 0.10; amending sections 61-8-714 and 61-8-722, MCA; and providing an immediate effective date."



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



Section 1.  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 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 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 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. Except as provided in subsection (8), 3 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 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. 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 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) (a)  On the fourth or subsequent conviction, the person is guilty of a felony offense and IS GUILTY OF A FELONY OFFENSE AND shall be punished by imprisonment for a term of not less than 1 year 6 months or more than 10 years 1 year 13 MONTHS and by a fine of not less than $1,000 or more than $10,000. 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. The person is not eligible for parole.

(b) After serving the term of imprisonment imposed under subsection (4)(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.

(c) 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 in subsections (4)(c)(i) through (4)(c)(vi).

(d) 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 (4)(e). The court may credit the remainder of the supervised release or the time to be served in a facility set forth in subsection (4)(e) with all or part of the time already served on supervised release.

(e) The person may not be sentenced to the department of corrections for placement in an appropriate correctional institution or program. The court shall specify one of the following facilities as the place in which the INITIAL term of imprisonment must be served, OR THE COURT SHALL SENTENCE THE PERSON TO THE DEPARTMENT OF CORRECTIONS FOR PLACEMENT IN AN APPROPRIATE CORRECTIONAL INSTITUTION OR PROGRAM, except that a prerelease center or boot camp may not be specified BY THE COURT without the prior approval of the department of corrections:

(i) a state prison;

(ii) a regional correctional facility;

(iii) a county jail;

(iv) a boot camp;

(v) a prerelease center;

(VI) A STATE-APPROVED PUBLIC OR PRIVATE TREATMENT FACILITY.

(f) The court shall order a person who is financially able to do so to pay the costs of imprisonment and supervised release under this subsection (4) and of the information course and treatment under subsection (5).

(G) FOLLOWING INITIAL PLACEMENT OF A DEFENDANT IN A FACILITY SET FORTH IN SUBSECTION (4)(E), THE DEPARTMENT OF CORRECTIONS MAY, AT ITS DISCRETION, PLACE THE OFFENDER IN ANOTHER FACILITY OR PROGRAM.

(5)(4)  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)(5)  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)(6)  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)(7)  The court may order that a term of imprisonment imposed under this section for a first, second, or third offense 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)(8)  Except for the initial 24 hours on a first offense or the initial 48 hours on a second or subsequent third offense, the court may order that a term of imprisonment imposed under this section for a first, second, or third offense be served by imprisonment under home arrest as provided in Title 46, chapter 18, part 10.

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



Section 2.  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 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 a second conviction of a violation of 61-8-406, the person shall be punished by imprisonment for not less than 48 consecutive hours 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 a third conviction of a violation of 61-8-406, the person shall be punished by imprisonment for not less than 48 consecutive hours 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) (a)  On the fourth or subsequent conviction, the person is guilty of a felony offense and IS GUILTY OF A FELONY OFFENSE AND shall be punished by imprisonment for a term of not less than 1 year 6 months or more than 10 years 1 year 13 MONTHS 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. The person is not eligible for parole.

(b) After serving the term of imprisonment imposed under subsection (4)(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.

(c) 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 in subsections (4)(c)(i) through (4)(c)(vi).

(d) 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 (4)(e). The court may credit the remainder of the supervised release or the time to be served in a facility set forth in subsection (4)(e) with all or part of the time already served on supervised release.

(e) The person may not be sentenced to the department of corrections for placement in an appropriate correctional institution or program. The court shall specify one of the following facilities as the place in which the INITIAL term of imprisonment must be served, OR THE COURT SHALL SENTENCE THE PERSON TO THE DEPARTMENT OF CORRECTIONS FOR PLACEMENT IN AN APPROPRIATE CORRECTIONAL INSTITUTION OR PROGRAM, except that a prerelease center or boot camp may not be specified BY THE COURT without the prior approval of the department of corrections:

(i) a state prison;

(ii) a regional correctional facility;

(iii) a county jail;

(iv) a boot camp;

(v) a prerelease center.

(f) The court shall order a person who is financially able to do so to pay the costs of imprisonment and supervised release under this subsection (4) and of the information course and treatment under subsection (6).

(G) FOLLOWING INITIAL PLACEMENT OF A DEFENDANT IN A FACILITY SET FORTH IN SUBSECTION (4)(E), THE DEPARTMENT OF CORRECTIONS MAY, AT ITS DISCRETION, PLACE THE OFFENDER IN ANOTHER FACILITY OR PROGRAM.

(5)(4)  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)(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 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)(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 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)(7)  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)(8)  The court may order that a term of imprisonment imposed under this section for a first, second, or third offense 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)(9) Except for the initial 24 hours on a first offense or the initial 48 hours on a second or subsequent third offense, the court may order that a term of imprisonment imposed under this section for a first, second, or third offense be served by imprisonment under home arrest as provided in Title 46, chapter 18, part 10.

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



NEW SECTION. SECTION 3. DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS -- DRIVING WITH EXCESSIVE ALCOHOL CONCENTRATION -- PENALTY FOR FOURTH OR SUBSEQUENT OFFENSE. (1) 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 IS GUILTY OF A FELONY AND SHALL BE PUNISHED BY:

(A) IMPRISONMENT FOR A TERM OF NOT LESS THAN 6 MONTHS OR MORE THAN 13 MONTHS, THE IMPOSITION OR EXECUTION OF WHICH MAY NOT BE SUSPENDED, AND DURING WHICH THE PERSON IS NOT ELIGIBLE FOR PAROLE;

(B) A SUPERVISED RELEASE PROBATION FOR A TERM OF NOT LESS THAN 1 YEAR OR MORE THAN 4 YEARS; AND

(C) A FINE OF NOT LESS THAN $1,000 [$1,500] OR MORE THAN $10,000.

(2) THE COURT SHALL, SUBJECT TO SENTENCING RESTRICTIONS:

(A) SPECIFY ONE OF THE FOLLOWING FACILITIES AS THE INITIAL PLACE IN WHICH THE TERM OF IMPRISONMENT MUST BE SERVED:

(I) A STATE PRISON;

(II) A REGIONAL CORRECTIONAL FACILITY;

(III) A COUNTY JAIL;

(IV) A BOOT CAMP, PROVIDED THE PRIOR APPROVAL OF THE DEPARTMENT OF CORRECTIONS HAS BEEN OBTAINED; OR

(V) A PRERELEASE CENTER, PROVIDED THE PRIOR APPROVAL OF THE DEPARTMENT OF CORRECTIONS HAS BEEN OBTAINED; OR

(B) SENTENCE THE PERSON TO THE DEPARTMENT OF CORRECTIONS FOR PLACEMENT IN AN APPROPRIATE CORRECTIONAL INSTITUTION OR PROGRAM; AND

(C) ORDER A PERSON WHO IS FINANCIALLY ABLE TO PAY THE COSTS OF IMPRISONMENT AND SUPERVISED RELEASE PROBATION UNDER THIS SECTION AND OF THE INFORMATION COURSE AND TREATMENT UNDER [SECTION 9 OF HOUSE BILL NO. 559].

(3) THE SENTENCING JUDGE MAY IMPOSE UPON THE DEFENDANT ANY REASONABLE RESTRICTIONS OR CONDITIONS DURING THE PERIOD OF SUPERVISED RELEASE PROBATION. REASONABLE RESTRICTIONS OR CONDITIONS MAY INCLUDE:

(A) CONDITIONS FOR SUPERVISED RELEASE;

(B)(A) PAYMENT OF A FINE AS PROVIDED IN 46-18-231;

(C)(B) PAYMENT OF COSTS AS PROVIDED IN 46-18-232 AND 46-18-233;

(D)(C) PAYMENT OF COSTS OF COURT-APPOINTED COUNSEL AS PROVIDED IN 46-8-113;

(E)(D) COMMUNITY SERVICE;

(F)(E) ANY OTHER REASONABLE RESTRICTIONS OR CONDITIONS CONSIDERED NECESSARY FOR REHABILITATION OR FOR THE PROTECTION OF SOCIETY;

(G)(F) TREATMENT IN A STATE-APPROVED PUBLIC OR PRIVATE TREATMENT FACILITY; OR

(H)(G) ANY COMBINATION OF THE RESTRICTIONS OR CONDITIONS LISTED IN SUBSECTIONS (3)(A) THROUGH (3)(G) (3)(F).

(4) (A) FOLLOWING INITIAL PLACEMENT OF A DEFENDANT IN A BOOT CAMP OR A PRERELEASE CENTER UNDER SUBSECTION (2)(A), THE DEPARTMENT OF CORRECTIONS MAY, AT ITS DISCRETION, PLACE THE OFFENDER IN ANOTHER FACILITY OR PROGRAM.

(B) THE TERM OF SUPERVISED RELEASE MUST BE SUPERVISED BY THE DEPARTMENT OF CORRECTIONS, WHICH MAY ORDER ALL OR ANY PORTION OF THE SUPERVISED RELEASE TERM OF PROBATION TO BE SERVED UNDER INTENSIVE SUPERVISION. THE PROVISIONS OF TITLE 46, CHAPTER 23, PART 10, RELATING TO PROBATION, APPLY TO THE SUPERVISED RELEASE PROBATION.

(5) IF A VIOLATION OF THE RESTRICTIONS OR CONDITIONS OF THE SUPERVISED RELEASE PROBATION IS ESTABLISHED, THE COURT MAY CONTINUE THE PERIOD OF SUPERVISED RELEASE PROBATION OR MAY REQUIRE THE DEFENDANT TO SERVE THE REMAINDER OF THE SUPERVISED RELEASE PROBATION SENTENCE IN ONE OF THE FACILITIES SET FORTH IN SUBSECTION (2)(A) OR (2)(B). THE COURT MAY CREDIT THE REMAINDER OF THE SUPERVISED RELEASE PROBATION OR THE TIME TO BE SERVED IN A FACILITY SET FORTH IN SUBSECTION (2)(A) OR (2)(B) WITH ALL OR PART OF THE TIME ALREADY SERVED ON SUPERVISED RELEASE PROBATION.



NEW SECTION. SECTION 4.  COORDINATION. (1) IF HOUSE BILL NO. 559 AND [THIS ACT] ARE PASSED AND APPROVED, THEN SUBSECTION (1) OF THE COORDINATION INSTRUCTION IN HOUSE BILL NO. 559 IS VOID, THE BRACKETED REFERENCES TO "SECTION 13" IN HOUSE BILL NO. 559 ARE REPLACED WITH A REFERENCE TO [SECTION 3] OF HOUSE BILL NO. 100, AND [SECTION 13], INSERTED BY THE COORDINATION INSTRUCTION IN HOUSE BILL NO. 559, IS REPLACED WITH [SECTION 3] OF [THIS ACT].

(2) IF HOUSE BILL NO. 208 AND [THIS ACT] ARE BOTH PASSED AND APPROVED, THEN THE BRACKETED AMOUNT IN [SECTION 3] IS EFFECTIVE.



NEW SECTION. Section 5.  Effective date. [This act] is effective on passage and approval.

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