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23.18.101   DEFINITIONS

This rule has been repealed.

History: 50-4-612, MCA; IMP, 50-4-601 through 50-4-612, MCA; NEW, 1995 MAR p. 1938, Eff. 9/29/95; REP, 2021 MAR p. 758, Eff. 6/26/21.

23.18.102   APPLICATION PROCEDURE

This rule has been repealed.

History: 50-4-612, MCA; IMP, 50-4-603, 50-4-612, MCA; NEW, 1995 MAR p. 1938, Eff. 9/29/95; REP, 2021 MAR p. 758, Eff. 6/26/21.

23.18.103   PROCEDURE FOR REVIEW OF APPLICATIONS

This rule has been repealed.

History: 50-4-612, MCA; IMP, 50-4-603, MCA; NEW, 1995 MAR p. 1938, Eff. 9/29/95; REP, 2021 MAR p. 758, Eff. 6/26/21.

23.18.104   STANDARDS FOR CERTIFICATION

This rule has been repealed.

History: 50-4-612, MCA; IMP, 50-4-603, MCA; NEW, 1995 MAR p. 1938, Eff. 9/29/95; REP, 2021 MAR p. 758, Eff. 6/26/21.

23.18.105   RECONSIDERATION

This rule has been repealed.

History: 50-4-612, MCA; IMP, 50-4-604, 50-4-612, MCA; NEW, 1995 MAR p. 1938, Eff. 9/29/95; REP, 2021 MAR p. 758, Eff. 6/26/21.

23.18.106   ACTIVE SUPERVISION OF APPROVED TRANSACTIONS

This rule has been repealed.

History: 50-4-612, MCA; IMP, 50-4-612, 50-4-622, MCA; NEW, 1995 MAR p. 1938, Eff. 9/29/95; REP, 2021 MAR p. 758, Eff. 6/26/21.

23.18.107   REVOCATION OF CERTIFICATES

This rule has been repealed.

History: 50-4-612, MCA; IMP, 50-4-609, 50-4-612, MCA; NEW, 1995 MAR p. 1938, Eff. 9/29/95; REP, 2021 MAR p. 758, Eff. 6/26/21.

23.18.108   FEES

This rule has been repealed.

History: 50-4-623, MCA; IMP, 50-4-612, 50-4-623, MCA; NEW, 1995 MAR p. 1938, Eff. 9/29/95; REP, 2021 MAR p. 758, Eff. 6/26/21.

23.18.201   QUARTERLY CERTIFICATIONS AND ESCROW DEPOSITS

(1) To promote compliance with 16-11-403 , MCA, the attorney general may require nonparticipating manufacturers to certify quarterly their compliance with the Montana Tobacco Product Reserve Fund Act and An Act Enhancing Enforcement of the Tobacco Product Reserve Fund Act. The attorney general may also require nonparticipating manufacturers to make the escrow payments required by 16-11-403 , MCA, in quarterly installments during the year in which the sales covered by such payments are made.

(2) This rule applies to nonparticipating manufacturers who meet any of the following criteria:

(a) the nonparticipating manufacturer has not previously established and funded a qualified escrow fund in Montana;

(b) the nonparticipating manufacturer has not made an escrow deposit for more than one year;

(c) the nonparticipating manufacturer has made an untimely or incomplete escrow deposit for any prior calendar year;

(d) the nonparticipating manufacturer has failed to pay any judgment, including any civil penalty, entered for any violation of 16-11-401 through 16-11-512 , MCA;

(e) the nonparticipating manufacturer has stamped or sold more than 1,000,000 of their cigarettes in Montana during a quarter; or

(f) if the attorney general has reasonable cause to believe the nonparticipating manufacturer may not make its full required escrow deposit by April 15 of the year following the year in which the cigarettes sales were made.

History: 16-11-508, 16-11-511, MCA; IMP, 16-11-403, 16-11-508, MCA; NEW, 2004 MAR p. 1323, Eff. 6/4/04.

23.18.202   DEADLINE FOR QUARTERLY ESCROW DEPOSITS

(1) Nonparticipating manufacturers who are required to make quarterly escrow deposits must do so no later than 30 days after the end of the quarter in which the sales are made. For example, the deadline for making a quarterly escrow deposit for cigarette sales occurring in January through March is April 30 of the same year.

History: 16-11-508, 16-11-511, MCA; IMP, 16-11-508, MCA; NEW, 2004 MAR p. 1323, Eff. 6/4/04.

23.18.203   DEADLINE FOR SUBMITTING QUARTERLY CERTIFICATION AND NOTIFYING ATTORNEY GENERAL OF QUARTERLY ESCROW DEPOSIT

(1) Nonparticipating manufacturers who are required to make quarterly escrow deposits must provide the attorney general with official notification of the quarterly escrow deposit no later than 15 days after the deadline on which an escrow deposit is required.

(2) Nonparticipating manufacturers must also provide their quarterly certifications and produce documentation sufficient to allow the attorney general to determine the adequacy of the deposit with the same deadline. For example, the deadline for certifying, officially notifying the attorney general of a quarterly escrow deposit, and providing the documentation of the adequacy of the deposit for sales of cigarettes that occurred in January through March is May 15 of the same year.

History: 16-11-508, 16-11-511, MCA; IMP, 16-11-403, 16-11-503, 16-11-508, MCA; NEW, 2004 MAR p. 1323, Eff. 6/4/04.

23.18.204   QUARTERLY PERIODS DEFINED
(1) For purposes of this subchapter, the calendar year shall be divided into the following quarters: January 1 through March 31; April 1 through June 30; July 1 through September 30; and October 1 through December 31.
History: 16-11-508, 16-11-511, MCA; IMP, 16-11-508, MCA; NEW, 2004 MAR p. 1323, Eff. 6/4/04.

23.18.205   UNTIMELY OR INCOMPLETE QUARTERLY CERTIFICATION OR QUARTERLY ESCROW DEPOSIT
(1) The attorney general may remove the delinquent nonparticipating manufacturer and its brand families from the directory required by 16-11-504 , MCA, if:

(a) the required quarterly escrow deposit is not timely made in full;

(b) the required quarterly certification is not provided to the attorney general;

(c) the attorney general does not receive timely official notice of the quarterly escrow deposit; or

(d) the manufacturer fails to provide timely documentation sufficient to establish the adequacy of the deposit.

History: 16-11-508, 16-11-511, MCA; IMP, 16-11-504, MCA; NEW, 2004 MAR p. 1323, Eff. 6/4/04.

23.18.206   BURDEN OF ESTABLISHING ENTITLEMENT TO BE LISTED IN THE DIRECTORY
(1) The burden of proof is on the tobacco product manufacturer to establish that it or a particular brand family is entitled to be listed on the directory.
History: 16-11-511, MCA; IMP, 16-11-504, MCA; NEW, 2004 MAR p. 1323, Eff. 6/4/04.

23.18.207   WHOLESALER REPORTING
(1) Wholesaler reports required by 16-11-507 , MCA, shall be filed monthly no later than 15 days after last day of the reporting month.
History: 16-11-511, MCA; IMP, 16-11-507, MCA; NEW, 2004 MAR p. 1323, Eff. 6/4/04.

23.18.208   LATE FILING ASSESSMENT
(1) A penalty will be assessed a wholesaler or tobacco product manufacturer for failing to file a report by 20 days after the last day of the reporting month.

(2) The failure to file a required report shall result in a late filing penalty of $50 for each business day the filing is late, for a maximum penalty of $1,000 per late filing.

History: 16-11-508, 16-11-511, MCA; IMP, 16-11-503, 16-11-507, 16-11-508, MCA; NEW, 2004 MAR p. 1323, Eff. 6/4/04.

23.18.209   TRUTHFULNESS, COMPLETENESS, AND ACCURACY OF SUBMISSIONS
(1) A wholesaler or tobacco product manufacturer who submits to the Department of Justice a report, invoice, receipt, memoranda, or other record is considered to represent to the Department of Justice, to the best of the wholesaler's or manufacturer's knowledge and belief, that the item is genuine and that its contents, including all statements, claims, and representations contained in the document, are true, complete, accurate and not misleading.

(2) There is an inference that a person who signs or submits a document to the Department of Justice on behalf or in the name of a wholesaler or manufacturer is authorized by the wholesaler or manufacturer to do so and is acting under the wholesaler's or manufacturer's direction.

History: 16-11-508, 16-11-511, MCA; IMP, 16-11-118, 16-11-503, 16-11-507, MCA; NEW, 2004 MAR p. 1323, Eff. 6/4/04.

23.18.210   COMPLAINTS
(1) Complaints regarding violations of 16-11-501 through 16-11-512 , MCA, must be submitted in writing in affidavit form and signed by the person with personal knowledge of the allegations in the complaint.
History: 16-11-511, MCA; IMP, 16-11-504, 16-11-505, 16-11-509, MCA; NEW, 2004 MAR p. 1323, Eff. 6/4/04.

23.18.301   DEFINITIONS

Unless the context indicates otherwise, the words and phrases in this subchapter have the definitions set forth in this rule.

(1) "24/7 sobriety program" or "program" means the program established in 4-4-1203, MCA. The program is a sobriety program in which a participant submits to testing of breath or other bodily substances to determine whether alcohol or drugs are present in the participant's body.

(2) "Continuous remote transdermal alcohol monitoring device" means an instrument that is securely located in close proximity to the wearer's skin and is capable of remotely sampling the wearer's sweat for the presence of transdermal alcohol concentration or TAC. The term includes any associated equipment necessary for the device to perform properly.

(3) "Data management system" means a data management technology plan approved by the Attorney General that is designed to manage testing, data access, fees and fee payments, and any required reports.

(4) "Department" means the Montana Department of Justice.

(5) "Drug patch" means an adhesive patch affixed to the skin for a set number of days that uses sweat to detect the parent drug and drug metabolite.

(6) "Participant" means a person who has been ordered by a court or directed by the Board of Pardons and Parole, Department of Corrections, or a parole officer to participate in the 24/7 sobriety program.

(7) "Participating agency" means a sheriff's office or an entity designated by a sheriff that has agreed to participate in the 24/7 sobriety program.

(8) "Participating vendor" means a vendor that meets the 24/7 sobriety program criteria established by the Attorney General to provide equipment or services to implement and operate the 24/7 sobriety program.

(9) "Preliminary alcohol screening test device" or "PAST" means a device listed on the Forensic Science Division's list for approved PAST devices.

(10) "Program requirements" means a document that sets forth the type and frequency of testing, the testing location, the testing fees and payment procedures, and the participant's responsibilities under the 24/7 sobriety program.

(11) "Remote breath test device" means a mobile breath alcohol testing device capable of scheduling tests at least three to six times a day and detecting and verifying the presence and level of alcohol in a testing participant's body. The term also includes ignition interlock devices.

(12) "Saliva testing" means testing that analyzes a saliva sample for parent drugs and metabolites.

(13) "Urinalysis" means the testing of urine by physical, chemical, and microscopical means to test for the presence of alcohol, drugs, or other substances.

(14) "Vendor agreement" means an agreement approved by the Attorney General between a participating vendor and a participating agency that establishes the services the participating vendor and a participating agency will provide, the related costs and fees, and the portion of costs and fees that will be paid to a participating vendor and to a participating agency.

 

History: 44-4-1204, MCA; IMP, 44-4-1204, MCA; NEW, 2011 MAR p. 2033, Eff. 10/1/11; AMD, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.302   PLACEMENT IN THE 24/7 SOBRIETY PROGRAM

(1) A participant may be placed in the 24/7 sobriety program as a condition of bond or pretrial release, a condition of sentence or probation, or as a condition of parole.

(2) An order or directive placing a participant in the program should include the type of testing and the length of time that the participant is to remain in the program.

(3) A participant shall report for twice-daily breath tests or, in cases of hardship, submit to a hardship testing methodology for the length of time ordered by the court, the Board of Pardons and Parole, the Department of Corrections, or a parole officer.

(4) A participating agency must receive a copy of the order or directive before enrolling a participant in the program.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, 44-4-1205, MCA; NEW, 2011 MAR p. 2033, Eff. 10/1/11; AMD, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.303   ENROLLMENT

(1) A representative of a participating agency shall enroll a participant in the 24/7 sobriety program prior to testing. 

(2) During enrollment, the representative of a participating agency shall enter the participant's information in the data management system. The representative of a participating agency shall provide the participant with the appropriate program requirements, inform the participant that information may be shared for law enforcement and reporting purposes, and provide the participant with information related to testing, procedures, and fees.

(3) The participant shall sign the program requirements and release of information form.

(4) A representative of a participating agency must enter the following information into the data management system for each participant at the time of enrollment:

(a) the participant's first and last names;

(b) the participant's national identification or social security number;

(c) the participant's program identifier;

(d) the case docket number, jurisdiction, and judge;

(e) the participant's gender, date of birth, race, ethnicity, email address, phone number, address, and current occupation;

(f) the program start date;

(g) the projected program end date;

(h) the monitoring type;

(i) offense;

(j) the supervising agency;

(k) the supervising agent; and

(l) the primary test site.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, MCA; NEW, 2011 MAR p. 2033, Eff. 10/1/11; AMD, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.304   TESTING AUTHORIZED

(1) Except as provided in (3), a participant in the 24/7 sobriety program shall submit to alcohol testing at a central location through a primary testing methodology.

(2) A participant who has been ordered to provide twice-daily breath tests shall report to the participating agency's testing location at two daily testing times approximately 12 hours apart. A trained person shall administer the required testing. The participant shall wait at least 20 minutes between an initial test with a non-negative test result and the confirmatory test.

(3) In cases of hardship, a participant may be ordered to submit to a hardship testing methodology that appears on the department's list of approved methodologies, instruments, and vendors.

(4) A participating agency shall record all installations, removals, test results, confirmed tampers, and reasons for a participant's termination from the program in the data management system on a timely basis.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, MCA; NEW, 2011 MAR p. 2033, Eff. 10/1/11; AMD, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.305   PARTICIPANT FEES

(1) A 24/7 program participant may be charged a fee of up to $30 each time a participant enrolls in a 24/7 sobriety program, in addition to any fees charged under (2) through (4).

(2) A participating agency shall charge a participant who has been ordered to provide twice-daily breath tests a fee, which may not exceed the amount provided for in the vendor agreement.

(3) A participating agency shall charge a participant who has been ordered to submit to remote transdermal alcohol monitoring or remote breath testing the following fees and costs, which may not exceed the amounts provided for in the vendor agreement:

(a) a daily monitoring fee as provided for in the vendor agreement, which must be paid in advance on a one-week, two-week, or four-week basis;

(b) an installation or activation fee as provided for in the vendor agreement; and

(c) any repair or replacement costs due to misuse.

(4) A participating agency shall charge a participant who has been ordered to submit to the use of a drug patch or to saliva or urinalysis testing a fee which may not exceed the amount provided for in the vendor agreement.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, 44-4-1206, MCA; NEW, 2011 MAR p. 2033, Eff. 10/1/11; AMD, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.306   COLLECTION, DISTRIBUTION, AND USE OF ENROLLMENT AND TESTING FEES

(1) A participant shall pay all fees directly to the participating agency. 

(2) A participating agency shall distribute a portion of the testing fees to the participating vendors in accordance with the vendor agreements.

(3) The participation fees and the remainder of the testing fee proceeds are for the use of the participating agency and must be placed in the sobriety program account authorized in ARM 23.18.307. The fee proceeds may be used only for the purposes of administering the 24/7 sobriety program.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, 44-4-1206, MCA; NEW, 2011 MAR p. 2033, Eff. 10/1/11; AMD, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.307   ACCOUNT FOR TESTING FEES

(1) A participating agency shall establish and maintain a sobriety program account.

(2) A participating agency shall collect and deposit testing fees and any other funds received for the 24/7 sobriety program into the sobriety program account for administration of the program.

History: 44-4-1204, MCA; IMP, 44-4-1204, 44-4-1206, MCA; NEW, 2011 MAR p. 2033, Eff. 10/1/11.

23.18.308   DATA MANAGEMENT SYSTEM

(1) A participating agency shall use the data management system, including hardware and software, approved and provided by the Attorney General. 

(2) The data management system must feature a secure, remotely hosted, demonstrated, web-based management application that allows multiple concurrent users to access and input information.

(3) The data management system must support breath testing (in-person and remote), continuous remote transdermal alcohol monitoring, drug patch testing, urinalysis testing, and saliva testing. The data management system must also support an interactive voice response system for generating random drug test schedules.

(4) The data management system must be capable of tracking and storing an unlimited number of events, including, but not limited to, participant enrollment, testing activity, accounting activity, and participating agency activity.

(5) The data management system must be capable of generating reports with any combination of system fields and data. The data management system must allow reports to be generated as needed and on a scheduled basis and allow reports to be exported over a network connection or by remote printing.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, 44-4-1206, MCA; NEW, 2011 MAR p. 2033, Eff. 10/1/11; AMD, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.309   24/7 SOBRIETY PROGRAM ADVISORY COUNCIL

(1) The Attorney General shall establish a 24/7 sobriety program advisory council. The council must include:

(a) a representative from the department;

(b) two members of the judiciary, one from an urban area and one from a rural area;

(c) two representatives from participating agencies, one from eastern Montana and one from western Montana;

(d) two legislators appointed by the Attorney General, one from the majority party and one from the minority party; and

(e) up to two other at large members appointed by the Attorney General. At large members must be stakeholders involved in the program.

(2) The Attorney General may convene meetings of the 24/7 sobriety program advisory council to review the program and administrative rules.

(3) Except as provided in (4), each appointed representative shall serve a term of two years. There shall be no limit on the number of terms a representative may serve.

(4) One representative appointed pursuant to each subsection from (1)(b) through (1)(e) shall serve an initial term of one year.

 

History: 44-4-1204, MCA; IMP, 44-4-1204, MCA; NEW, 2011 MAR p. 2033, Eff. 10/1/11; AMD, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.310   APPROVED TESTING METHODOLOGIES, INSTRUMENTS, AND VENDORS

(1) The department shall maintain a list of approved testing methodologies, instruments, and vendors for the 24/7 sobriety program. Only approved methodologies, instruments, and vendors may be used.

(2) To be approved:

(a) the testing methodology and instrument must conform to the requirements of ARM 23.18.311 through 23.18.313; and

(b) the participating vendor must have a current vendor agreement.

(3) The department shall publish the list on the department's website. The department shall distribute copies of the list to the participating agencies, judges, and any other entity using the 24/7 program.

(4) The department shall remove a methodology, instrument, or vendor from the list if:

(a) the instrument or vendor fails to comply with any requirement in (2) after notification and an opportunity to remedy the failure; or

(b) the methodology or instrument is no longer supported by evidence of effectiveness.

(5) The department shall notify all participating law enforcement agencies, judges, and participating entities when removing a methodology, instrument, or vendor from the list.

(6) The sheriff shall ensure that the individuals administering all 24/7 program testing methodologies and instruments are properly trained.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, MCA; NEW, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.311   PRELIMINARY ALCOHOL SCREENING TEST (PAST) DEVICES

(1) The department shall approve a PAST device for use in the 24/7 sobriety program if the device:

(a) appears on the list of approved PAST devices maintained by the Forensic Science Division; and

(b) is field certified pursuant to ARM 23.4.213.

(2) The department shall include a device approved pursuant to (1) on its list of approved testing methodologies, instruments, and vendors.

(3) The following definitions apply to a twice-daily PAST testing regimen:

(a) "Confirmation test" or "confirmatory test" is the final breath alcohol test used to determine if a participant violated the requirements of the program.

(b) "Confirmed no show" means a pending no show that is unexcused and confirmed. A confirmed no show is a non-compliant event.

(c) "Deprivation period" means the time required between a non-negative initial test and a confirmatory test. During a deprivation period, the participant is instructed to remove any non-fixed foreign material from their mouth and to not place any new foreign matter into their mouth.

(d) "Excused no show" means a pending no show that is excused by the participant's supervisor. An excused no show is not a non-compliant event.

(e) "Initial test" is a first test that screens out compliant participants. Participants with a non-negative initial test are subject to a confirmatory test.

(f) "Negative for the presence of alcohol" means the PAST initial or confirmatory test results are less than 0.006 G/210L, where G means the weight of alcohol in grams and L means the volume of breath in liters.

(g) "Non-negative test result" means the PAST initial test results are greater than or equal to 0.006 G/210L, where G means the weight of alcohol in grams and L means the volume of breath in liters. Non-negative test results are compliant test results.

(h) "Pending no show" means a scheduled test for which a participant did not appear or did not provide a sample for analysis, but the no show is not yet confirmed or excused by the participant's supervisor.

(i) "Positive for the presence of alcohol" means the initial and confirmatory test results are 0.006 G/210L or greater, where G means the weight of alcohol in grams and L means the volume of breath in liters.

(j) "Refusal to test" means a participant is unwilling to provide a confirmatory test after an initial test. This is a non-compliant event.

(4) All testing data from a PAST device must be entered into the data management system.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, MCA; NEW, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.312   TRANSDERMAL TESTING

(1) Only transdermal alcohol monitoring devices and vendors on the department's list of approved testing methodologies, instruments, and vendors may be used in the 24/7 program.

(2) The following definitions apply to a transdermal testing regimen:

(a) "Confirmed positive transdermal result" means the transdermal instrument reports a "confirmed positive" based on the participant's alcohol use.

(b) "Confirmed tamper" means an instance where a participant attempts to foil the testing process or alter the test result, with or without success.

(c) "Positive for the use of alcohol" or "confirmed positive" means the transdermal system reports and confirms a participant's alcohol use.

(3) Transdermal alcohol monitoring devices must transmit stored test data to the transdermal alcohol monitoring system for interpretation and storage at least once a week.

(4) At least once a day, the transdermal alcohol monitoring system must transmit collected enrollment and test data into the data management system through a department-approved interface. The uploaded data shall include recently collected data with a date stamp for the day it was collected and a date stamp for the day that the results were generated. If all of the tests for a day are collected, but not confirmed, a message indicating that the data for that day is "in process" should be transmitted to the data management system. No data or message should be transmitted for a day where data has yet to be collected from the testing device. Once confirmed data has been successfully uploaded to the data management system, it should not be uploaded again unless the data management system requests it.

(5) Required data includes the following:

(a) enrollment data as outlined in ARM 23.18.303(4);

(b) the instrument's identification;

(c) the name of the instrument/bracelet owner;

(d) the program start and end dates;

(e) the device attachment date;

(f) the data transfer type;

(g) the days monitored;

(h) the number of analyses performed daily;

(i) any confirmed test results with the time, date, and if the test result is positive, the transdermal alcohol concentration;

(j) the device removal date;

(k) the removed instrument's identification;

(l) the reason for the device's removal;

(m) the reason for the participant's program termination; and

(n) the date and time of the participant's program termination.

(6) Transdermal alcohol monitoring devices must sample a person's perspiration at least once every 30 minutes.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, MCA; NEW, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.313   REMOTE BREATH TESTING

(1) Only remote breath testing devices and vendors on the department's list of approved testing methodologies, instruments, and vendors may be used in the program.

(2) The following definitions apply to a remote breath testing regimen:

(a) "Confirmation test" or "confirmatory test" is the final breath alcohol test used to determine if a participant violated the requirements of the program.

(b) "Confirmed no show" means a pending no show that is unexcused and confirmed. A confirmed no show is a non-compliant event.

(c) "Confirmed tamper" means an instance where a participant attempts to foil the testing process or alter the test result, with or without success.

(d) "Deprivation period" means the time required between a non-negative initial test and a confirmatory test. During a deprivation period, the participant is instructed to remove any non-fixed foreign material from their mouth and to not place any new foreign matter into their mouth.

(e) "Excused no show" means a pending no show that is excused by the participant's supervisor. An excused no show is not a non-compliant event.

(f) "Initial test" is a first test that screens out compliant participants. Participants with a non-negative initial test are subject to a confirmatory breath alcohol test.

(g) "Negative for the presence of alcohol" means the initial or confirmatory test results are less than 0.020 G/210L, where G means the weight of alcohol in grams and L means the volume of breath in liters.

(h) "Non-negative test result" means the initial test results are greater than or equal to 0.020 G/210L, where G means the weight of alcohol in grams and L means the volume of breath in liters. Non-negative tests are compliant tests.

(i) "Pending no show" means a scheduled test for which a participant did not appear or did not provide an initial sample for analysis, but the no show is not yet resolved by the participant's supervisor.

(j) "Positive for the presence of alcohol" means the initial and confirmatory test results where both results are 0.020 G/210L or greater, where G means the weight of alcohol in grams and L means the volume of breath in liters.

(k) "Refusal to test" means a participant's unwillingness to provide a confirmatory test after an initial test. This is a non-compliant event.

(3) At least once a day, remote breath alcohol monitoring devices must transmit stored test data to the remote breath alcohol monitoring system for interpretation and storage.

(4) At least once a day, a remote breath alcohol monitoring system must transmit collected enrollment and test data into the data management system through a department-approved interface. The uploaded data shall include recently collected data with a date stamp for the day the data was collected and the day the results were generated. If all of the tests for a day have been collected, but not confirmed, a message indicating that the data for that day are "in process" should be transmitted. No data or message should be transmitted for a day where data has yet to be collected from the testing device. Once confirmed data has been successfully uploaded to the data management system, it should not be uploaded again unless the data system requests it.

(5) Required data includes the following:

(a) enrollment data as outlined in ARM 23.18.303(4);

(b) the instrument's identification;

(c) the name of the instrument owner;

(d) the program start and end dates;

(e) the instrument acceptance date;

(f) the data transfer type;

(g) the days monitored;

(h) the number of analyses performed daily;

(i) any confirmed test results, including a refusal to provide a confirmation test, a confirmed no show, or an excused no show, with the time, date, and if the test result is positive, the alcohol concentration;

(j) the instrument return date;

(k) the returned instrument's identification;

(l) the reason for the instrument's return;

(m) the reason for the participant's program termination; and

(n) the date and time of the participant's program termination.

(6) Remote breath alcohol testing devices must conduct between three and six tests per day, with two of the tests twelve hours apart.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, MCA; NEW, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.314   DRUG PATCH USAGE

(1) Only drug patches and vendors on the department's list of approved testing methodologies, instruments, and vendors may be used in the program.

(2) A drug patch shall be used and transmitted to the laboratory for analysis in accordance with manufacturer specifications.

(3) The individual removing the drug patch shall collect specimens using a container from an approved vendor and send the container to the laboratory for testing.

(4) For each specimen, the individual administering the drug patch shall complete a test-requisition and chain of custody form in accordance with industry standards.

(5) Required data from drug patch testing must be promptly entered into the data management system. The required data includes:

(a) enrollment data as outlined in ARM 23.18.303(4);

(b) the program start date;

(c) the program end date;

(d) the drug patch attachment date;

(e) the drug patch identification;

(f) the test status and result;

(g) the reason for the participant's program termination; and

(h) the date and time of the participant's program termination.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, MCA; NEW, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.315   SALIVA AND URINALYSIS TESTING

(1) Only saliva and urinalysis testing instruments and vendors on the department's list of approved testing methodologies, instruments, and vendors may be used in the program.

(2) For purposes of this rule, the following definitions apply:

(a) "Confirmatory test" means the final drug test used to determine if a participant has violated the requirements of the program. If the participant does not admit use and chooses to perform a laboratory confirmation test, the laboratory confirmation test is considered a confirmatory test and the on-site analysis is considered an initial test. If the participant chooses not to run a laboratory confirmation test, the on-site test is considered the confirmatory test.

(b) "Initial test" means a first test that screens out compliant participants. If the initial test is non-negative, the participant is subject to a confirmatory test in urinalysis and oral swab testing unless the participant admits use.

(c) "Laboratory" means:

(i) a facility that receives and tests saliva and urine specimens to determine the presence of drugs; and

(ii) a facility with at least one of the following certifications or accreditations: Clinical Laboratory Improvement Amendment (CLIA); American Association for Laboratory Accreditation; American Osteopathic Association/Healthcare Facilities Accreditation Program (AOA/HFAP); College of American Pathologists (COLA); ANSI National Accreditation Board (ANAB); or The Joint Commission.

(d) "Non-negative test result" means a test result on an initial test that is greater than the cutoff level for a psychoactive substance or metabolite but is not confirmed as a positive test.

(e) "Positive test result" means a test result confirming the presence of a psychoactive substance or metabolite in a sample provided by a participant.

(3) The individual administering the saliva or urinalysis test shall collect specimens using a container from an approved vendor and send the container to a laboratory for testing if the testing protocol requires laboratory review. For each specimen requiring laboratory review, the individual administering the test shall complete a test-requisition and/or chain of custody form in accordance with industry standards.

(4) Required data from saliva and urinalysis testing must be promptly entered into the data management system. Required data includes:

(a) enrollment data as outlined in ARM 23.18.303(4);

(b) the program start date;

(c) the program end date;

(d) the reason for a participant's program enrollment;

(e) the name of the individual administering the test;

(f) the primary test site;

(g) the type of test; the oral fluid or urinalysis kit identification number;

(h) for a laboratory sample, the chain of custody number;

(i) the test status and result;

(j) the reason for the participant's program termination; and

(k) the date and time of the participant's program termination.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, MCA; NEW, 2020 MAR p. 2407, Eff. 12/25/20.

23.18.316   VIOLATIONS—NONCOMPLIANT EVENTS

(1) A participant fails to comply with the requirements of the 24/7 sobriety program if the participant:

(a) fails to enroll in the 24/7 sobriety program;

(b) is unwilling to pay the associated testing or participation fees;

(c) admits use of alcohol or a dangerous drug;

(d) fails to provide a proper test sample;

(e) violates a condition of program participation; or

(f) is otherwise determined to be noncompliant by a program administrator or judge.

(2) In addition to the noncompliant events in (1), a participant who is ordered to submit to twice-daily breath tests on a PAST fails to comply with the requirements of the 24/7 sobriety program if the participant:

(a) fails to report to the testing location during the scheduled testing times;

(b) reports to the testing site but refuses or is unable to provide an initial sample or a confirmatory sample for analysis; or

(c) provides a confirmatory test that is positive for the presence of alcohol greater than or equal to 0.006 G/210L of breath for PAST devices.

(3) In addition to the noncompliant events in (1), a participant who is ordered to submit to transdermal alcohol monitoring fails to comply with the requirements of the 24/7 sobriety program if:

(a) the transdermal alcohol monitoring system reports a confirmed positive transdermal result; or

(b) the transdermal alcohol monitoring system reports a confirmed tamper.

(4) In addition to the noncompliant events in (1), a participant who is ordered to submit to remote breath alcohol monitoring fails to comply with the requirements of the 24/7 sobriety program if:

(a) the remote breath alcohol monitoring system reports a confirmed positive result;

(b) the remote breath alcohol monitoring system reports a confirmed tamper; or

(c) the participant fails to provide a breath sample within thirty minutes of a scheduled test time.

(5) In addition to the noncompliant events in (1), a participant who is ordered to submit to drug patch testing fails to comply with the requirements of the 24/7 sobriety program if the participant:

(a) fails to appear for a scheduled patch installation or removal;

(b) receives a positive test result after laboratory analysis of the patch; or

(c) tampers with the patch.

(6) In addition to the noncompliant events in (1), a participant who is ordered to submit to urinalysis testing or saliva testing fails to comply with the requirements of the 24/7 sobriety program if the participant:

(a) fails to report to the testing location at a scheduled testing time;

(b) reports to the testing site but refuses or is unable to provide an initial sample or a confirmatory sample for analysis;

(c) fails a screening test and refuses a confirmatory test;

(d) fails a confirmatory test;

(e) admits use of a prohibited substance; or

(f) adulterates or otherwise tampers with a sample.

 

History: 44-4-1204, MCA; IMP, 44-4-1203, 44-4-1204, MCA; NEW, 2020 MAR p. 2407, Eff. 12/25/20.