BEFORE THE DEPARTMENT OF JUSTICE

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 23.4.201, 23.4.203, 23.4.209, 23.4.210, 23.4.211, 23.4.212, 23.4.213, 23.4.214, 23.4.215, 23.4.216, 23.4.217, 23.4.218, 23.4.219, 23.4.220, 23.4.221, and 23.4.225 pertaining to drug and/or alcohol analysis

) ) ) ) ) ) )

NOTICE OF PROPOSED AMENDMENT   NO PUBLIC HEARING CONTEMPLATED

 

TO: All Concerned Persons

 

1. On March 27, 2023, the Department of Justice proposes to amend the above-stated rules.

 

2. The Department of Justice will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Justice no later than 5:00 p.m. on March 7, 2023, to advise us of the nature of the accommodation that you need. Please contact Buffy Ekola, Department of Justice, 215 North Sanders, Helena, Montana 59620-1401; telephone (406) 444-5776; fax (406) 444-3549; or e-mail BEkola@mt.gov.

 

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            23.4.201 DEFINITIONS Unless the context requires otherwise, the following definitions apply to this subchapter:

            (1)  "Accessory" means any device or item, which may or may not be expandable, but assists in the operation of the breath analysis instrument.

            (2) and (3) remain the same, but are renumbered (1) and (2).

            (4)  "Alveolar air" means that air which is located in the alveoli of the lungs and is responsible for the exchange of gases between the blood and the lung. This is the type of breath upon which the 2100:1 breath blood ratio is established.

            (5) through (20) remain the same, but are renumbered (3) through (18).

      (21)  "MLEA" means Montana Law Enforcement Academy.

      (22)  "NHTSA" means National Highway Traffic Safety Administration.

            (23) "POST council" means Police Officer Standards and Training Advisory Council of the Montana Board of Crime Control.

            (24) through (27) remain the same, but are renumbered (19) through (22).

            (28)  "SFST/HGN" means standardized field sobriety testing/horizontal gaze nystagmus.

            (29) through (31) remain the same, but are renumbered (23) through (25).

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON:  Some definitions have been eliminated as there is no reference to them within this subchapter.  The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.203 EXEMPTIONS (1) remains the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

      23.4.209 BREATH ANALYSIS INSTRUMENTS (1)  All models of breath analysis instruments used to administer testing according to 61-8-402 61-8-1019, MCA, must be approved by the division.  The models operated by certified operators and/or senior operators prior to and on the effective date of this rule are deemed approved by the division.

 

AUTH: 61-8-405(6) 61-8-1019, MCA

IMP: 61-8-405(6) 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing the statutory reference in the text of this rule and this rule's authority and implementation statutes.

 

            23.4.210 SURVEYS AND PROFICIENCY TESTS (1) through (3) remain the same.

 

AUTH: 61-8-405(6) 61-8-1019, MCA

IMP: 61-8-405(6) 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.211 BLOOD AND URINE TEST RECORDS (1) remains the same.

 

AUTH: 61-8-405(6) 61-8-1019, MCA

IMP: 61-8-405(6) 61-8-1019, MCA

 

REASON:  The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.212 BREATH ANALYSIS INSTRUMENTATION AND ASSOCIATED EQUIPMENT (1) through (8) remain the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.213 FIELD CERTIFICATION OF BREATH ANALYSIS INSTRUMENTS AND ASSOCIATED EQUIPMENT (1) and (2) remain the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.214 LABORATORY CERTIFICATION (1) through (5) remain the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.215 QUALIFICATION OF BREATH ANALYSIS LOCATION (1) through (8) remain the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.216 INITIAL CERTIFICATION OF BREATH-TEST SPECIALISTS (1) through (7) remain the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.217 RENEWAL OF BREATH-TEST SPECIALIST PERMITS (1) through (7) remain the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

23.4.218 PERMITS (1)  No individual may perform a breath analysis for alcohol pursuant to 61-8-402 61-8-1019, MCA, without a current permit.  Individuals holding permits issued by the division shall perform only those functions designated by that permit.

            (2) remains the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing the statutory reference in the text of this rule and this rule's authority and implementation statutes.

 

            23.4.219 REVOCATION OF PERMITS (1) and (2) remain the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.220 COLLECTION OF BLOOD SAMPLES FOR DRUG AND/OR ALCOHOL ANALYSIS (1) through (7) remain the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.221 COLLECTION OF POSTMORTEM SAMPLES FOR DRUG AND/OR ALCOHOL ANALYSIS (1) through (4) remain the same.

 

AUTH: 61-8-405(6) 61-8-1019, MCA

IMP: 61-8-405(6) 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

            23.4.225 PRELIMINARY ALCOHOL SCREENING TESTS (PASTs) 

            (1) through (6) remain the same.

 

AUTH: 61-8-405 61-8-1019, MCA

IMP: 61-8-405 61-8-1019, MCA

 

REASON: The laws regarding driving under the influence were amended by the 2021 Montana Legislature resulting in some existing statutes being repealed and new statutes being enacted thereby changing this rule's authority and implementation statutes.

 

4. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to:  Buffy Ekola, Department of Justice, 215 North Sanders, Helena, Montana 59620-1401; telephone (406) 444-5776; fax (406) 444-3549; or e-mail BEkola@mt.gov, and must be received no later than 5:00 p.m., March 24, 2023.

 

5. If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Buffy Ekola at the above address no later than 5:00 p.m., March 24, 2023.

 

6. If the agency receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register.  Ten percent of those directly affected has been determined to be 193 persons based on 1,925 breath test specialists across the state and three manufacturers of the breath test instruments used throughout the state.

 

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the department.

 

8. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register.

 

9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ DAVID ORTLEY                                    /s/ CHRISTIAN CORRIGAN                    

David Ortley                                               Christian Corrigan                                      

Deputy Attorney General                            Solicitor General

Rule Reviewer                                            Department of Justice

           

Certified to the Secretary of State February 14, 2023.