Senate Bill No. 106

Introduced By van valkenburg

By Request of the Department of Justice



A Bill for an Act entitled: "An Act generally revising driving under the influence laws with respect to the tests used to detect, estimate, and measure alcohol or drugs, or both, in a person's body; authorizing admission of preliminary alcohol screening test results and physical, psychomotor, and physiological assessments of alcohol or drug presence or impairment in driving under the influence and other proceedings, including certain criminal prosecutions and civil proceedings in which alcohol or drug-presence or impairment is at issue; eliminating use of urine testing under the implied consent law; permitting submission of certified, rather than sworn, statements from peace officers concerning testing refusals; authorizing use of blood or breath analysis test results in certain criminal prosecutions and civil actions; and amending sections 61-8-401, 61-8-402, 61-8-404, 61-8-405, 61-8-407, 61-8-409, 61-8-805, and 61-8-806, MCA."



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



Section 1.  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 for any a 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 of a test, as shown by analysis of a sample of the person's blood, urine, or breath drawn or taken within a reasonable time after the alleged act, shall give gives rise to the following inferences:

(a)  If there was at that time an alcohol concentration of 0.05 0.04 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 0.04 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 combination of the two alcohol and drugs.

(6)  Each municipality in this state is given authority to enact 61-8-406, 61-8-408, 61-8-410, 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 in the ordinance.

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



Section 2.  Section 61-8-402, MCA, is amended to read:

"61-8-402.   Blood, or breath, or urine tests for alcohol, drugs, or both. (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person's blood, or breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person's body if arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two alcohol and drugs. The test or tests must be administered at the direction of a peace officer who has reasonable grounds to believe that the person has been driving or has been in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two. The arresting officer may designate which test or tests are administered. A test for alcohol must be given first, whether or not that test also tests for drugs, and if the test shows an alcohol concentration of 0.10 or more, a test for drugs may not be given.

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

(3)  If a driver under arrest an arrested person refuses upon the request of a peace officer to submit to a test or one or more tests requested and designated by the arresting officer as provided in subsection (1), a the refused test or tests may not be given, but the officer shall, on behalf of the department, immediately seize the person's driver's license. The peace officer shall immediately forward the license to the department, along with a sworn report certified under penalty of law noting that the peace officer had reasonable grounds to believe that the arrested person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two alcohol and drugs and noting that the person refused to submit to the test or one or more tests upon the request of requested and designated by the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5).

(4)  Upon seizure of a driver's license, the peace officer shall issue, on behalf of the department, a temporary driving permit, which is valid for 5 days following the date of issuance and shall provide the driver with written notice of the license suspension or revocation and the right to a hearing provided in 61-8-403.

(5)  The following suspension and revocation periods are applicable upon refusal to submit to a test or one or more tests:

(a)  upon a first refusal, a suspension of 6 months with no provision for a restricted probationary license;

(b)  upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the department, a revocation of 1 year with no provision for a restricted probationary license.

(6)  A nonresident driver's license seized under this section must be sent by the department to the licensing authority of the nonresident's home state with a report of the nonresident's refusal to submit to a test or one or more tests.

(7)  The department may recognize the seizure of a license of a tribal member by a peace officer acting under the authority of a tribal government or an order issued by a tribal court suspending, revoking, or reinstating a license or adjudicating a license seizure if the actions are conducted pursuant to tribal law or regulation requiring alcohol or drug testing of motor vehicle operators and the conduct giving rise to the actions occurred within the exterior boundaries of a federally recognized Indian reservation in this state. Action by the department under this subsection is not reviewable under 61-8-403.

(8)  All suspensions are A suspension under this section is subject to review as provided in this part.

(9) This section does not apply to blood and breath tests, samples, and analyses used for purposes of medical treatment or care of an injured motorist or related to a lawful seizure for a suspected violation of an offense not in this part."



Section 3.  Section 61-8-404, MCA, is amended to read:

"61-8-404.   Evidence admissible -- conditions of admissibility. (1) Upon the trial of any a criminal action or other proceeding arising out of acts alleged to have been committed by any a person in violation of 61-8-401, or 61-8-406, 61-8-410, or 61-8-805:

(a)  evidence of any measured amount or detected presence of alcohol, or drugs, or a combination of alcohol and drugs in the person at the time of the act alleged, as shown by an analysis of the person's blood, or breath, or urine, is admissible. A positive test result does not, in itself, prove that the person was under the influence of a drug or drugs at the time the person was in control of a motor vehicle. A person may not be convicted of a violation of 61-8-401 based upon the presence of a drug or drugs in the person unless some other competent evidence exists that tends to establish that the person was under the influence of a drug or drugs while driving or in actual physical control of a motor vehicle within this state.

(b)  a report of the facts and results of any test or one or more tests of a person's blood, or breath, or urine administered under 61-8-402 is admissible in evidence if:

(i)  the a breath test or preliminary alcohol screening test was performed by a person certified by the forensic sciences division of the department to administer breath tests or the test;

(ii) the a blood or urine test sample was a laboratory analysis and the analysis was done analyzed in a laboratory operated or certified by the department or by any other or in a laboratory or facility certified or exempt from certification under the rules of the department; and

(ii) the test was on a blood sample, the person withdrawing and the blood was withdrawn from the person by a person competent to do so under 61-8-405(1).

(c) a report of the facts and results of a physical, psychomotor, or physiological assessment of a person is admissible in evidence if it was for alcohol and was made by a person trained by the department or if it was for drugs and was made by a person certified by the department.

(2)  If the person under arrest refused to submit to the test or one or more tests as provided in this section, proof of refusal is admissible in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle upon the ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of the two alcohol and drugs.

(3)  The provisions of this part do not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of alcohol, drugs, or a combination of the two alcohol and drugs."



Section 4.  Section 61-8-405, MCA, is amended to read:

"61-8-405.   Administration of tests. (1) Only a physician or registered nurse, or other qualified person acting under the supervision and direction of a physician or registered nurse acting, may, at the request of a peace officer, may withdraw blood for the purpose of determining any measured amount or detected presence of alcohol, drugs, or any combination of alcohol and drugs in the person. This limitation does not apply to the taking sampling of breath or urine specimens.

(2)  The person may, at the person's own expense, have a physician or registered nurse of the person's own choosing administer a test, in In addition to any test administered at the direction of a peace officer, a person may request that an independent blood sample be drawn by a physician or registered nurse for the purpose of determining any measured amount or detected presence of alcohol, or drugs, or any combination of alcohol and drugs in the person at the time alleged, as shown by analysis of the person's blood, breath, or urine. The cost of an independent blood test is the sole responsibility of the person requesting the test. The failure or inability to obtain an additional independent test by a person does not preclude the admissibility in evidence of the any test or tests taken given at the direction of a peace officer.

(3)  Upon the request of the person tested, full information concerning the any test or tests taken given at the direction of the peace officer must be made available to the person or the person's attorney.

(4)  A physician or registered nurse, or other qualified person acting under the supervision and direction of a physician or registered nurse, does not incur any civil or criminal liability as a result of the proper administering of a blood test when requested in writing by a peace officer to administer a test.

(5)  If a test given under 61-8-402 or 61-8-806 is a test of urine, the person tested must be given privacy in the taking of the urine specimen that will ensure the integrity of the specimen and, at the same time, maintain the dignity of the individual involved.

(6)(5)  The department in cooperation with any appropriate agency shall adopt uniform rules for the giving of tests and may require certification of training to administer the tests as considered necessary."



Section 5.  Section 61-8-407, MCA, is amended to read:

"61-8-407.   Definition of alcohol concentration. For purposes of 16-6-305, 61-8-401, and 61-8-406 and this chapter, "alcohol concentration" means either grams of alcohol per 100 milliliters of blood, or grams of alcohol per 210 liters of breath, or grams of alcohol per 75.3 milliliters of urine."



Section 6.  Section 61-8-409, MCA, is amended to read:

"61-8-409.   Preliminary alcohol screening test. (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a preliminary alcohol screening test of the person's breath, for the purpose of estimating the person's alcohol concentration, upon the request of a peace officer who has a particularized suspicion that the person was driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol or in violation of 61-8-410.

(2)  The results of a screening test may be used for determining whether probable cause exists to believe a person has violated 61-8-401, 61-8-406, or 61-8-410.

(3)(2)  The person's obligation to submit to a test under 61-8-402 is not satisfied by the person submitting to a preliminary alcohol screening test pursuant to this section.

(4)(3)  The peace officer shall inform the person of the right to refuse the test and that the refusal to submit to the preliminary alcohol screening test will result in the suspension or revocation for up to 1 year of that person's driver's license.

(5)(4)  If the person refuses to submit to a test under this section, a test will not be given. However, the refusal is sufficient cause to suspend or revoke the person's driver's license as provided in 61-8-402.

(6)(5)  A hearing as provided for in 61-8-403 must be available. The issues in the hearing must be limited to determining whether a peace officer had a particularized suspicion that the person was driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol or in violation of 61-8-410 and whether the person refused to submit to the test.

(7)(6)  The provisions of 61-8-402(2) through (7) that do not conflict with this section are applicable to refusals under this section. If a person refuses a test requested under 61-8-402 and this section for the same incident, the department may not consider each a separate refusal for purposes of suspension or revocation under 61-8-402.

(8)(7)  A test may not be conducted or requested under this section unless both the peace officer and the instrument used to conduct the preliminary alcohol screening test have been certified by the department pursuant to rules adopted under the authority of 61-8-405(6)(5)."



Section 7.  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 certified under penalty of law 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."



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

"61-8-806.   Blood, and 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 one or more tests of the operator's blood, or breath, or urine for the purpose of determining any measured or detected amount of alcohol in the operator's body if the operator is requested to submit to the test or tests by a peace officer having reasonable grounds to believe the person to have been 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 alcohol concentration. The peace officer may designate a the blood, or breath, or urine test or tests to be administered.

(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 refuses upon the request of a peace officer to submit to a test one or more tests designated by the officer as provided in subsection (1), the test or tests may not be given. On behalf of the department, 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 driving or was in actual physical control of a commercial motor vehicle upon ways of this state open to the public while having any measurable or detectable alcohol concentration and that the person had refused to submit to the test one or more tests 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 commercial driver's license, the peace officer shall issue, on behalf of the department, a temporary noncommercial driving permit. The temporary driving permit is valid for 72 hours after issuance.

(5)  If a commercial motor vehicle operator refuses to submit to a test one or more tests as provided in subsection (3), the department shall suspend the operator's commercial driver's license:

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

(b)  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.

(6)  A nonresident commercial motor vehicle operator who refuses to submit to a test one or more tests 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)."

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