Bill Summary – FastDemocracy

67th Legislature                                                                                                     SB 365.1
                                                    SENATE BILL NO. 365
                                                INTRODUCED BY K. REGIER
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   A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS REGARDING DRIVING UNDER
   THE INFLUENCE; PROVIDING DEFINITIONS; PROVIDING FOR DRIVING UNDER THE INFLUENCE
   CRIMES, TREATMENT REQUIREMENTS, A SOBRIETY MONITORING PROGRAM, FORFEITURE
   PROVISIONS, IMPLIED CONSENT AND ADMINISTRATIVE LICENSE SUSPENSION, APPEAL PROCESS,
   CONDITIONS OF ADMISSIBILITY, A PROCESS FOR ADMINISTRATION OF TESTS, CONDITIONS FOR
   RECEIVING A PROBATIONARY DRIVER'S LICENSE, OPEN CONTAINER VIOLATIONS, AND
   REVOCATION AND SUSPENSION OF LICENSE PROCEDURES; PROVIDING RULEMAKING AUTHORITY;
   PROVIDING PENALTIES; AMENDING SECTIONS 23-2-535, 44-4-1205, 45-5-106, 45-5-205, 45-5-207, 45-5-
   628, 46-16-130, 46-18-201, 46-18-236, 50-46-320, 53-9-103, 61-1-101, 61-2-107, 61-2-302, 61-5-205, 61-5-
   208, 61-5-212, 61-5-218, 61-5-231, 61-5-405, 61-8-101, 61-8-102, 61-8-805, 61-8-807, 61-11-101, AND 67-1-
   211, MCA; REPEALING SECTIONS 61-8-401, 61-8-402, 61-8-403, 61-8-404, 61-8-405, 61-8-406, 61-8-407,
   61-8-408, 61-8-409, 61-8-410, 61-8-411, 61-8-421, 61-8-422, 61-8-440, 61-8-441, 61-8-442, 61-8-460, 61-8-
   461, 61-8-465, 61-8-714, 61-8-722, 61-8-731, 61-8-732, 61-8-733, 61-8-734, AND 61-8-741, MCA; AND
   PROVIDING A DELAYED EFFECTIVE DATE AND AN APPLICABILITY DATE.”
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              NEW SECTION. Section 1.         Definitions. As used in [sections 1 through 17], unless the context
   requires otherwise and unless a different meaning plainly is required, the following definitions apply:
              (1)   "Aggravated driving under the influence" means a person is in violation of [section 2(1)(a), (1)(b),
   (1)(c), or (1)(d)] and:
              (a)   the person's alcohol concentration, as shown by analysis of the person's blood, breath, or other
   bodily substance, is 0.16 or more;
              (b)   the person is under the order of a court or the department to equip any motor vehicle the person
   operates with an approved ignition interlock device;
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              (c)   the person's driver's license or privilege to drive is suspended, canceled, or revoked as a result of
   a prior violation of driving under the influence, including a violation of [section 2(1)(a), (1)(b), (1)(c), or (1)(d)], an
   offense that meets the definition of aggravated driving under the influence, or a similar offense under previous
   laws of this state or the laws of another state; or
              (d)   the person refuses to give a breath sample as required in [section 8] and the person's driver's
   license or privilege to drive was suspended, canceled, or revoked under the provisions of an implied consent
   statute.
              (2)   "Alcoholic beverage" means a compound produced for human consumption as a drink that
   contains 0.5% or more of alcohol by volume.
              (3)   "Alcohol concentration" means either grams of alcohol per 100 milliliters of blood or grams of
   alcohol per 210 liters of breath, including as used in 16-6-305, 23-2-535, 45-5-207, 67-1-211, and this title.
              (4)   "Bus" means a motor vehicle with a manufacturer's rated seating capacity of 11 or more
   passengers, including the driver.
              (5)   "Camper" has the meaning provided in 61-1-101.
              (6)   "Commercial motor vehicle" has the meaning provided in 61-1-101.
              (7)   "Drug" means any substance that when taken into the human body can impair a person's ability to
   operate a vehicle safely. The term includes the meanings provided in 50-32-101(6), (7), and (14).
              (8)   "DUI court" means any court that has established a special docket for handling cases involving
   persons convicted under [section 3 or 4] and that implements a program of incentives and sanctions intended to
   assist a participant to complete treatment ordered pursuant to [section 5] and to end the participant's criminal
   behavior associated with the use of alcohol or drugs.
              (9)   "Highway" has the meaning provided in 61-1-101, including the shoulders of the highway.
              (10) "Motor home" has the meaning provided in 61-1-101.
              (11) "Motor vehicle" has the meaning provided in 61-1-101.
              (12) "Open alcoholic beverage container" means a bottle, can, jar, or other receptacle that contains
   any amount of an alcoholic beverage and that is open or has a broken seal or the contents of which are partially
   removed.
              (13) "Passenger area" means the area designed to seat the driver and passengers while a motor
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   vehicle is in operation and any area that is readily accessible to the driver or a passenger while the driver or a
   passenger is seated in the vehicle, including an unlocked glove compartment.
              (14) "Under the influence" means that as a result of taking into the body alcohol, drugs, or any
   combination of alcohol and drugs, a person's ability to safely operate a vehicle has been diminished.
              (15) "Vehicle" has the meaning provided in 61-1-101, except that the term does not include a bicycle.
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              NEW SECTION. Section 2.         Driving under influence. (1) A person commits the offense of driving
   under the influence if the person drives or is in actual physical control of:
              (a)   a vehicle or a commercial motor vehicle upon the ways of this state open to the public while under
   the influence of alcohol, any drug, or a combination of alcohol and any drug;
              (b)   a noncommercial 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 other bodily substance, is 0.08 or more;
              (c)   a commercial motor vehicle within this state while the person's alcohol concentration, as shown by
   analysis of the person's blood, breath, or other bodily substance, is 0.04 or more;
              (d)   a noncommercial vehicle or commercial motor vehicle within this state while the person's delta-9-
   tetrahydrocannabinol level, excluding inactive metabolites, as shown by analysis of the person's blood or other
   bodily substance, is 5 ng/ml or more; or
              (e)   a vehicle within this state when the person is under 21 years of age at the time of the offense
   while the person's alcohol concentration, as shown by analysis of the person's blood, breath, or other bodily
   substance, is 0.02 or more.
              (2)   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 of a test, as shown by analysis of a sample of the person's
   blood, breath, or other bodily substance drawn or taken within a reasonable time after the alleged act, gives rise
   to the following inferences:
              (a)   if there was at that time an alcohol concentration of 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 0.04 but less than 0.08, that fact
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   may not give rise to any inference that the person was or was not under the influence of alcohol, but the fact
   may be considered with other competent evidence in determining the guilt or innocence of the person; and
              (c)   if there was at that time an alcohol concentration of 0.08 or more, it may be inferred that the
   person was under the influence of alcohol. The inference is rebuttable.
              (3)   The provisions of subsection (2) do not limit the introduction of any other competent evidence
   bearing on the issue of whether the person was under the influence of alcohol, drugs, or a combination of
   alcohol and drugs.
              (4)   Each municipality in this state is given authority to enact this section, with the word "state"
   changed to read "municipality", as an ordinance and is given jurisdiction of the enforcement of the ordinance
   and the imposition of the fines and penalties provided in the ordinance.
              (5)   Absolute liability, as provided in 45-2-104, is imposed for a violation of this section.
              (6)   When the same acts may establish the commission of an offense under subsection (1), a person
   charged with the conduct may be prosecuted for a violation of another relevant subsection under subsection
   (1). However, the person may be convicted of only one offense under this section or of a similar offense under
   previous laws of this state.
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              NEW SECTION. Section 3.         Penalty for driving under influence -- first through third offenses. (1)
   (a) Except as provided in subsection (1)(b) or (1)(c), a person convicted of a violation of [section 2(1)(a)] shall
   be punished as follows:
              (i)   for a first violation, by imprisonment for not less than 24 consecutive hours or more than 6 months
   and by a fine of not less than $600 or more than $1,000, except that if one or more passengers under 16 years
   of age were in the vehicle at the time of the offense, the person shall be punished by imprisonment for not less
   than 48 consecutive hours or more than 1 year and by a fine of not less than $1,200 or more than $2,000;
              (ii) for a second violation, by imprisonment for not less than 7 days or more than 1 year and by a fine of
   not less than $1,200 or more than $2,000, except that if one or more passengers under 16 years of age were in
   the vehicle at the time of the offense, the person shall be punished by imprisonment for not less than 14 days or
   more than 1 year and a fine of not less than $2,400 or more than $4,000; or
              (iii) for a third violation, by imprisonment for not less than 30 days or more than 1 year and by a fine of
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   not less than $2,500 or more than $5,000, except that if one or more passengers under 16 years of age were in
   the vehicle at the time of the offense, the person shall be punished by imprisonment for not less than 60 days or
   more than 1 year and by a fine of not less than $5,000 or more than $10,000.
              (b)   If the person has a prior conviction under 45-5-106, the person shall be punished as provided in
   [section 4].
              (c)   If the person has a prior conviction or pending charge for a violation of driving under the influence,
   including [section 2(1)(a), (1)(b), (1)(c), or (1)(d)], or a similar offense under previous laws of this state or the
   laws of another state that meets the definition of aggravated driving under the influence in [section 1], the
   person shall be punished as provided in subsection (4).
              (d)   The mandatory minimum imprisonment term may not be served under home arrest and may not
   be suspended unless the judge finds that the imposition of the imprisonment sentence will pose a risk to the
   person's physical or mental well-being.
              (e)   The remainder of the imprisonment sentence may be suspended for a period of up to 1 year
   pending the person's successful completion of a chemical dependency treatment program pursuant to [section
   5]. During any suspended portion of sentence imposed by the court:
              (i)   the person is subject to all conditions of the suspended sentence imposed by the court, including
   mandatory participation in drug or DUI courts, if available;
              (ii) the person is subject to all conditions of the 24/7 sobriety and drug monitoring program, if available
   and if imposed by the court; and
              (iii) if the person violates any condition of the suspended sentence or any treatment requirement, the
   court may impose the remainder of any imprisonment term that was imposed and suspended.
              (2)   (a) Except as provided in subsection (2)(b) or (2)(c), a person convicted of a violation of [section
   2(1)(b), (1)(c), or (1)(d)] shall be punished as follows:
              (i)   for a first violation, by imprisonment for not more than 6 months and by a fine of not less than $600
   or more than $1,000, except that if one or more passengers under 16 years of age were in the vehicle at the
   time of the offense, the person shall be punished by imprisonment for not more than 6 months and by a fine of
   not less than $1,200 or more than $2,000;
              (ii) for a second violation, by imprisonment for not less than 5 days or more than 1 year and by a fine of
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   not less than $1,200 or more than $2,000, except that if one or more passengers under 16 years of age were in
   the vehicle at the time of the offense, the person shall be punished by imprisonment for not less than 10 days or
   more than 1 year and by a fine of not less than $2,400 or more than $4,000; or
              (iii) for a third violation, by imprisonment for not less than 30 days or more than 1 year and by a fine of
   not less than $2,500 or more than $5,000, except that if one or more passengers under 16 years of age were in
   the vehicle at the time of the offense, the person shall be punished by imprisonment for not less than 60 days or
   more than 1 year and by a fine of not less than $5,000 or more than $10,000.
              (b)   If the person has a prior conviction under 45-5-106, the person shall be punished as provided in
   [section 4].
              (c)   If the person has a prior conviction or pending charge for a violation of driving under the influence,
   including [section 2(1)(a), (1)(b), (1)(c), or (1)(d)], or a similar offense under previous laws of this state or the
   laws of another state that meets the definition of aggravated driving under the influence in [section 1], the
   person shall be punished as provided in subsection (4).
              (d)   The mandatory minimum imprisonment term may not be served under home arrest and may not
   be suspended unless the judge finds that the imposition of the imprisonment sentence will pose a risk to the
   person's physical or mental well-being.
              (e)   The remainder of the imprisonment sentence may be suspended for a period of up to 1 year
   pending the person's successful completion of a chemical dependency treatment program pursuant to [section
   5]. During any suspended portion of sentence imposed by the court:
              (i)   the person is subject to all conditions of the suspended sentence imposed by the court, including
   mandatory participation in drug or DUI courts, if available;
              (ii) the person is subject to all conditions of the 24/7 sobriety and drug monitoring program, if available
   and if imposed by the court; and
              (iii) if the person violates any condition of the suspended sentence or any treatment requirement, the
   court may impose the remainder of any imprisonment term that was imposed and suspended.
              (3)   (a) A person convicted of a violation of [section 2(1)(e)] shall be punished as follows:
              (i)   Upon a first conviction under this section, a person shall be punished by a fine of not less than
   $100 or more than $500.
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              (ii) Upon a second conviction under this section, a person shall be punished by a fine of not less than
   $200 or more than $500 and, if the person is 18 years of age or older, by incarceration for not more than 10
   days.
              (iii) Upon a third or subsequent conviction under this section, a person shall be punished by a fine of
   not less than $300 or more than $500 and, if the person is 18 years of age or older, by incarceration for not less
   than 24 consecutive hours or more than 60 days.
              (iv) In addition to the punishment provided in this section, regardless of disposition:
              (A)    the person shall comply with the chemical dependency education course and chemical
   dependency treatment provisions in [section 5] as ordered by the court; and
              (B)    the department shall suspend