SENATE BILL NO. 318
INTRODUCED BY M. WHEAT
A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING THAT ON A THIRD OR SUBSEQUENT VIOLATION FOR DRIVING UNDER THE INFLUENCE OR WITH A BLOOD ALCOHOL CONCENTRATION OF 0.10 OR MORE, A PERSON'S DRIVER'S LICENSE REVOCATION MUST CONTINUE FOR 1 YEAR, THE PERSON MAY NOT RECEIVE A RESTRICTED PROBATIONARY LICENSE DURING THAT PERIOD, THE PERSON SHALL COMPLETE A RESIDENTIAL ALCOHOL TREATMENT PROGRAM OF AT LEAST 90-DAYS DURATION AND PRESENT WRITTEN PROOF OF THE COMPLETION IN ORDER TO HAVE THE LICENSE REINSTATED, AND THE PERSON'S REGISTRATION PRIVILEGES MUST BE REVOKED FOR 1 YEAR; AND AMENDING SECTIONS 61-2-302, 61-5-205, 61-5-208, 61-8-442, 61-8-714, 61-8-722, 61-8-731, AND 61-8-734, MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 61-2-302, MCA, is amended to read:
"61-2-302. Establishment of driver rehabilitation and improvement program -- department to contract with private entities -- participation by offending drivers. (1) (a) The department shall 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.
(b) The rules must:
(i) provide for the local program courses to be operated by private entities;
(ii) develop a procedure for certifying private entities as driver rehabilitation and improvement course providers;
(iii) establish the criteria that private entities must meet in order to be certified by the department; and
(iv) provide for an alternative driver rehabilitation and improvement procedure for drivers who live in areas where a course is not offered.
(2) Official participation in the driver rehabilitation and improvement program is limited to those persons 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, is suspended under 45-5-624(2)(b);
(b) revoked and they have:
(i) completed at least 3 months of a 1-year revocation or, if revocation is for a second or subsequent violation of 61-8-401 or 61-8-406 and the offender is otherwise eligible, have provided the department with proof of compliance with the ignition interlock device restriction imposed under 61-5-208; or
(ii) completed 1 year of a 3-year revocation; and
(iii) met the requirements for reobtaining a Montana driver's license; or
(c) subject to suspension as provided in 61-11-204(3).
(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 rehabilitation and improvement program and meets the eligibility requirements of subsection (2).
(4) In the event that a person's driver's license has been surrendered 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) This part does not create a right to be included in any program established under this part.
(7) The department and the entity with which the department contracts under subsection (1)(b) shall establish separate fee schedules that may be charged to those persons participating in the driver improvement and rehabilitation program. The fees must be collected separately by the department and by the entity with which the department contracts under subsection (1)(b).
(8) The fees collected by the department under subsection (7) must be used to help defray costs incurred by the department in administering the program and in contracting with private entities as provided in subsection (1). The department may not use the fees collected under subsection (7) for any other purpose.
(9) 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 hearing examiner of the department.
(10) (a) Except as provided in (10)(b), 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.
(b) The department may not issue a restricted probationary license that would permit an individual to drive a commercial motor vehicle during a period in which:
(i) the individual is disqualified from operating a commercial motor vehicle under state or federal law; or
(ii) the individual's driver's license or driving privilege is revoked, suspended, or canceled.
(11) 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 2. Section 61-5-205, MCA, is amended to read:
"61-5-205. Mandatory revocation or suspension of license upon proper authority. (1) The department upon proper authority shall revoke the driver's license or the operating privilege of a driver upon receiving a record of the driver's conviction of or forfeiture of bail not vacated for any of the following offenses, when the conviction or forfeiture has become final:
(a) negligent homicide resulting from the operation of a motor vehicle;
(b) except as provided in 61-5-208, driving a motor vehicle while under the influence of alcohol or any drug or a combination of alcohol or drugs, except as provided in 61-5-208, or operation of a motor vehicle by a person with a blood alcohol concentration of 0.10 or more;
(c) any felony in the commission of which a motor vehicle is used;
(d) failure to stop and render aid as required under the laws of this state in the event of a motor vehicle accident resulting in the death or personal injury of another;
(e) perjury or the making of a false affidavit or statement under oath to the department under this chapter or under any other law relating to the ownership or operation of motor vehicles;
(f) conviction or forfeiture of bail not vacated upon three charges of reckless driving committed within a period of 12 months; or
(g) negligent vehicular assault as defined in 45-5-205 involving a motor vehicle.
(2) The department upon proper authority shall suspend the driver's license or the operating privilege of a driver upon receiving a record of the driver's conviction of or forfeiture of bail not vacated for a theft offense under 45-6-301 when the conviction or forfeiture has become final if the theft consisted of theft of motor vehicle fuel and a motor vehicle was used in the commission of the offense. The suspension must be for 30 days for a first offense, 6 months for a second offense, and 1 year for a third or subsequent offense."
Section 3. Section 61-5-208, MCA, is amended to read:
"61-5-208. Period of suspension or revocation -- probationary license -- ignition interlock device required on second or subsequent offense. (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) Except as provided in 61-2-302, 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 until the revocation or suspension period has been completed.
(b)(3) (a) When Except as provided in subsections (3)(b) and (3)(c), when a 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.
(b) 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 and, upon issuance of any restricted probationary license during the period of revocation, restrict the person to driving only a motor vehicle equipped with a functioning ignition interlock device. If the 1-year period passes and the person has not completed a chemical dependency education course, treatment, or both, as ordered by the sentencing court, the license revocation remains in effect until the course, treatment, or both, are completed.
(c) Upon receiving a report of a conviction or forfeiture of bail or collateral for a 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. A restricted probationary license may not be issued during the period of revocation. If the 1-year period passes and the person has not completed a residential alcohol treatment program of at least 90 days, as ordered by the sentencing court, the license revocation remains in effect until the treatment is completed and written proof of the completion is provided to the department.
(c)(4) For the purposes of subsection (2)(b) (3), a person is considered to have committed a second, third, or subsequent offense if fewer than 5 years have passed between the date of an offense that resulted in a prior conviction and the date of the offense that resulted in the most recent conviction.
(3) (a) If a person pays the reinstatement fee required in 61-2-107 and provides the department proof of compliance with an ignition interlock restriction imposed under 61-8-442, the department shall stay the license suspension 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 has expired and any required chemical dependency education 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 court-imposed 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 for the remainder of the time period. The department may not issue a probationary driver's license to a person whose license suspension has been reinstated because of violation of an ignition interlock restriction.
(4) The period for all revocations made mandatory by 61-5-205 is 1 year except as provided in subsection (2).
(5) The period of revocation for a person convicted of any offense that makes mandatory the revocation of the person's driver's license commences from the date of conviction or forfeiture of bail.
(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 61-8-802."
Section 4. Section 61-8-442, MCA, is amended to read:
"61-8-442. Driving under the influence of alcohol or drugs -- driving with excessive alcohol concentration -- ignition interlock device discretionary on first offense -- stay of suspension. (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 driving only 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;
(b) the defendant's blood alcohol concentration at the time of the arrest was 0.18% or greater; and
(c) the defendant has not been previously 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 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.
(4) (a) If a person pays the reinstatement fee required in 61-2-107 and provides the department with proof of compliance with an ignition interlock restriction imposed under this section, the department shall stay the suspension of the person's license under 61-5-208(3)(a) and return the person's driver's license. The stay must remain in effect until the period of suspension has expired and any required chemical dependency education 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 court-imposed ignition interlock restriction by such acts as 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 for the remainder of the time period. The department may not issue a probationary driver's license to a person whose license suspension has been reinstated because of violation of an ignition interlock restriction."
Section 5. Section 61-8-714, MCA, is amended to read:
"61-8-714. Penalty for driving under influence of alcohol or drugs -- first through third offense. (1) A person convicted of a violation of 61-8-401 shall be punished by imprisonment for not less than 24 consecutive hours or more than 6 months and shall be punished by a fine of not less than $100 or more than $500. The initial 24 hours of the imprisonment term must be served in the county jail and may not be served under home arrest. The mandatory 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. Except for the initial 24 hours of the imprisonment term, notwithstanding 46-18-201(2), the imprisonment sentence may be suspended for a period of up to 1 year pending successful completion of court-ordered chemical dependency assessment, education, or treatment by the defendant.
(2) 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 or more than 6 months. At least 48 hours of the imprisonment term must be served consecutively in the county jail and may not be served under home arrest. Three 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. Except for the initial 3 days of the imprisonment term, notwithstanding 46-18-201(2), the imprisonment sentence may be suspended for a period of up to 1 year pending successful completion of a chemical dependency treatment program by the defendant.
(3) (a) On the third conviction, the person shall be punished by imprisonment for a term of not less than 30 days or more than 1 year and by a fine of not less than $500 or more than $1,000. At least 48 hours of the imprisonment term must be served consecutively in the county jail and may not be served under home arrest. The imposition or execution of the first 10 days of the imprisonment sentence may not be suspended. The remainder of the imprisonment sentence may be suspended for a period of up to 1 year pending successful completion of a chemical dependency treatment program by the defendant.
(b) In addition to a fine and jail term, the judge shall:
(i) require the person to complete a residential alcohol treatment program of at least 90-days duration, at the person's expense, unless the person is indigent, in which case the expense must be borne by the state; and
(ii) order the surrender of the vehicle registration receipt and license plates for the vehicle operated at the time of the offense if that vehicle was owned by the person. The court shall send the receipt and plates, along with a copy of the complaint and dispositional order, to the department, which shall immediately suspend the receipt and plates for a period of 1 year from the date of the conviction. The receipt and plates may not be reinstated until the expiration of that period, but if the vehicle is transferred to a new owner, the new owner is entitled to register the vehicle."
Section 6. Section 61-8-722, MCA, is amended to read:
"61-8-722. Penalty for driving with excessive alcohol concentration -- first through third offense. (1) 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) 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, to be served in the county jail and not on home arrest, or more than 30 days and by a fine of not less than $300 or more than $500.
(3) (a) 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, to be served in the county jail and not on home arrest, or more than 6 months and by a fine of not less than $500 or more than $1,000.
(b) In addition to a fine and jail term, the judge shall:
(i) require the person to complete a residential alcohol treatment program of at least 90-days duration, at the person's expense, unless the person is indigent, in which case the expense must be borne by the state; and
(ii) order the surrender of the vehicle registration receipt and license plates for the vehicle operated at the time of the offense if that vehicle was owned by the person. The court shall send the receipt and plates, along with a copy of the complaint and dispositional order, to the department, which shall immediately suspend the receipt and plates for a period of 1 year from the date of the conviction. The receipt and plates may not be reinstated until the expiration of that period, but if the vehicle is transferred to a new owner, the new owner is entitled to register the vehicle."
Section 7. Section 61-8-731, MCA, is amended to read:
"61-8-731. 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) sentencing the person to the department of corrections for placement in an appropriate correctional facility or program for a term of 13 months. The court shall order that if the person successfully completes a residential alcohol treatment program operated or approved by the department of corrections, the remainder of the 13-month sentence must be served on probation. The imposition or execution of the 13-month sentence may not be deferred or suspended, and the person is not eligible for parole.
(b) sentencing the person to either the department of corrections or the Montana state prison or Montana women's prison for a term of not more than 5 years, all of which must be suspended, to run consecutively to the term imposed under subsection (1)(a); and
(c) a fine in an amount of not less than $1,000 or more than $10,000; and
(d) revoking the person's vehicle registration privileges, as provided in 61-8-722(3).
(2) The department of corrections may place an offender sentenced under subsection (1)(a) in a residential alcohol treatment program operated or approved by the department of corrections or in a state prison.
(3) The court shall, as a condition of probation, order:
(a) that the person abide by the standard conditions of probation promulgated by the department of corrections;
(b) a person who is financially able to pay the costs of imprisonment, probation, and alcohol treatment under this section;
(c) that the person may not frequent an establishment where alcoholic beverages are served;
(d) that the person may not consume alcoholic beverages;
(e) that the person may not operate a motor vehicle unless authorized by the person's probation officer;
(f) that the person enter in and remain in an aftercare treatment program for the entirety of the probationary period;
(g) that the person submit to random or routine drug and alcohol testing; and
(h) that if the person is permitted to operate a motor vehicle, the vehicle be equipped with an ignition interlock system.
(4) The sentencing judge may impose upon the defendant any other reasonable restrictions or conditions during the period of probation. Reasonable restrictions or conditions may include but are not limited to:
(a) payment of a fine as provided in 46-18-231;
(b) payment of costs as provided in 46-18-232 and 46-18-233;
(c) payment of costs of court-appointed counsel as provided in 46-8-113;
(d) community service;
(e) any other reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of society; or
(f) any combination of the restrictions or conditions listed in subsections (4)(a) through (4)(e).
(5) Following initial placement of a defendant in a treatment facility under subsection (2), the department of corrections may, at its discretion, place the offender in another facility or program.
(6) The provisions of 46-18-203, 46-23-1001 through 46-23-1005, 46-23-1011 through 46-23-1014, and 46-23-1031 apply to persons sentenced under this section."
Section 8. Section 61-8-734, MCA, is amended to read:
"61-8-734. Driving under influence of alcohol or drugs -- driving with excessive alcohol concentration -- conviction defined -- place of imprisonment -- home arrest -- exceptions -- deferral of sentence not allowed. (1) (a) For the purpose of determining the number of convictions under 61-8-714 or 61-8-722 for a violation of 61-8-401 or 61-8-406, "conviction" means a final conviction, as defined in 45-2-101, in this state; conviction for a violation of a similar statute or regulation in another state, or a federally recognized Indian reservation; or a forfeiture of bail or collateral deposited to secure the defendant's appearance in court in this state, another state, or a federally recognized Indian reservation, which forfeiture has not been vacated.
(b) 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.
(c) A previous conviction under 61-8-714 or 61-8-722 for violation of 61-8-401 or 61-8-406 may be counted for purposes of determining the number of a subsequent conviction for violation of either 61-8-401 or 61-8-406.
(2) Except as provided in 61-8-731, the court may order that a term of imprisonment imposed under 61-8-714 or 61-8-722 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.
(3) Subject to the limitations set forth in 61-8-714 and 61-8-722 concerning minimum periods of imprisonment, the court may order that a term of imprisonment imposed under either section be served by imprisonment under home arrest, as provided in Title 46, chapter 18, part 10.
(4) A court may not defer imposition of sentence under 61-8-714, 61-8-722, or 61-8-731.
(5) The provisions of 61-2-107, 61-2-302, 61-5-205(1)(b), and 61-5-208(2), relating to suspension and revocation of driver's licenses and later reinstatement of driving privileges, apply to any conviction under 61-8-714 or 61-8-722 for a violation of 61-8-401 or 61-8-406."
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