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| Montana Administrative Register Notice 23-3-220 | No. 13 07/14/2011 | |
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BEFORE THE DEPARTMENT OF JUSTICE OF THE STATE OF
TO: All Concerned Persons 1. On August 18, 2011, at 1:30 p.m., the Department of Justice will hold a public hearing in the auditorium of the 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 August 4, 2011, to advise us of the nature of the accommodation that you need. Please contact Kathy Stelling, Department of Justice, 215 North Sanders, 3. The rules as proposed to be adopted provide as follows: NEW RULE I DEFINITIONS Unless the context indicates otherwise, the words and phrases in this subchapter have the definitions set forth in this rule. (1) "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. (2) "Department" means the Montana Department of Justice. (3) "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. (4) "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. (5) "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. (6) "Preliminary alcohol screening test device" means a device designed to detect and verify the presence of alcohol or provide an estimated value of alcohol concentration. (7) "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. (8) "24/7 sobriety program" or "program" means the program established in 2011 Mont. Laws, ch. 318, § 3. The program is a continuous 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. (9) "Transdermal alcohol monitoring device" means a device that is capable of continuous or transdermal alcohol monitoring that can be attached directly to the participant. The term includes any associated equipment necessary for the device to perform properly. (10) "Vendor agreement" means an agreement approved by the Attorney General that establishes the services the participating vendor will provide and the related costs and fees. AUTH: 2011 IMP: 2011 REASON: This rule is reasonably necessary to define significant terms used in the rules related to the 24/7 sobriety program.
NEW RULE II 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 must 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 submit to testing through a transdermal alcohol monitoring device 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. AUTH: 2011 IMP: 2011 REASON: This rule is reasonably necessary to ensure that the participating agency is informed of the entity that ordered or directed the participant to enroll in the program, the type of testing required, and the length of time that the participating agency must test or monitor the participant. NEW RULE III 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. AUTH: 2011 IMP: 2011 REASON: This rule is reasonably necessary to ensure that the participant's information is entered into the data management system before the participant begins the program. This rule also ensures that a participant is informed of the program requirements, including what conduct may constitute a violation, and that information will be shared for reporting and law enforcement purposes. NEW RULE IV TESTING AUTHORIZED (1) Except as provided in (3), a participant in the 24/7 sobriety program shall submit to alcohol testing through twice-daily breath tests on a preliminary alcohol screening test device. (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. (3) A participant may be ordered to submit to transdermal alcohol monitoring on a transdermal alcohol monitoring device if: (a) a device is available; (b) the participant is capable of paying the fees and costs associated with transdermal alcohol monitoring; (c) the participant is capable of wearing the device; and (d) it is determined that the participant does not qualify for twice-daily breath tests because of one or more of the following: (i) the participant lives in a rural area and submitting to twice-daily breath tests would be unduly burdensome; (ii) the participant's employment requires job performance at a location remote from the testing location and submitting to twice-daily breath tests would be unduly burdensome; or (iii) the participant repeatedly has violated the 24/7 sobriety program while submitting to twice-daily breath tests and poses a substantial risk of future violation. (4) A participating agency shall record all testing results in the data management system. AUTH: 2011 IMP: 2011 REASON: This rule is reasonably necessary to establish the program's approved testing methodologies and to explain the nature and manner of testing. NEW RULE V PARTICIPANT FEES (1) 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. (2) A participating agency shall charge a participant who has been ordered to submit to transdermal alcohol monitoring 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/activation fee as provided for in the vendor agreement; and (c) any repair or replacement costs due to misuse. AUTH: 2011 Mont. Laws, ch. 318, § 4 IMP: 2011 Mont. Laws, ch. 318, §§ 3, 4, 6 REASON: This rule is reasonably necessary to set reasonable testing fees for the 24/7 sobriety program. NEW RULE VI COLLECTION, DISTRIBUTION, AND USE OF TESTING FEES (1) A participant shall pay all fees directly to the participating agency. (2) A participating agency shall distribute a portion of the fees to the participating vendors in accordance with the vendor agreements. (3) The remainder of the fee proceeds is for the use of the participating agency and must be placed in the sobriety program account authorized in [NEW RULE VII]. The fee proceeds may be used only for the purposes of administering the 24/7 sobriety program. AUTH: 2011 Mont. Laws, ch. 318, § 4 IMP: 2011 Mont. Laws, ch. 318, §§ 3, 4, 6 REASON: This rule is reasonably necessary to set forth the manner in which a participating agency collects, distributes, and uses fees generated by the program. This rule establishes that a participating agency shall use a portion of the fees to pay the vendors that provide the equipment and services necessary for the 24/7 sobriety program, such as the vendors of the preliminary alcohol screening test devices, the transdermal alcohol monitoring devices, and the data management system. This rule also establishes that proceeds remaining after the vendors have been paid must be placed in a 24/7 sobriety program account for the participating agency's benefit, rather than in an unrelated, or general fund.
NEW RULE VII 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. AUTH: 2011 Mont. Laws, ch. 318, § 4 IMP: 2011 Mont. Laws, ch. 318, §§ 4, 6 REASON: This rule is reasonably necessary to authorize and require a participating agency to establish an account devoted to the 24/7 sobriety program. NEW RULE VIII 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, transdermal alcohol monitoring, drug patch testing, and urinalysis testing. (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. AUTH: 2011 Mont. Laws, ch. 318, § 4. IMP: 2011 Mont. Laws, ch. 318, §§ 3, 4, 6 REASON: This rule is reasonably necessary to establish specific minimal requirements for a data management technology plan. A fundamental component of the 24/7 sobriety program is that agencies throughout the state must have access to information about the program and the ability to generate any necessary reports. This rule establishes that multiple users in multiple locations simultaneously can use the data management system to input and retrieve information securely within the system and generate any necessary reports. This rule establishes that participating agencies are required to use the data management system approved by the Attorney General. NEW RULE IX 24/7 SOBRIETY PROGRAM MANAGEMENT GROUP (1) The Attorney General shall establish a 24/7 sobriety program management group. The group must include: (a) a representative from the department; (b) two representatives from rural participating agencies, one representing eastern Montana and one representing western Montana; (c) two representatives from urban participating agencies, one representing eastern Montana and one representing western Montana; and (d) a representative from the Lewis and Clark County participating agency. (2) The Attorney General shall meet at least annually with the 24/7 sobriety program management group to review the program and administrative rules. AUTH: 2011 Mont. Laws, ch. 318, § 4. IMP: 2011 Mont. Laws, ch. 318, § 4 REASON: This rule is reasonably necessary to ensure that the rules adopted by the Attorney General continue to further the legislative goal of implementing the 24/7 sobriety program. Because the 24/7 sobriety program initially was implemented in Lewis and Clark County as a pilot program, a representative from the county is specifically included so that the group may benefit from the experience gained during the pilot program. 4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: J. Stuart Segrest, Department of Justice, 215 North Sanders, P.O. Box 201401, Helena, MT 59620-1401; telephone (406) 444-2026; Montana Relay Service 711; fax (406) 444-3549; or e-mail ssegrest@mt.gov, and must be received no later than August 20, 2011. 5. J. Stuart Segrest, Department of Justice, has been designated to preside over and conduct this hearing. 6. 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. 7. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems. 8. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by e-mail on June 16, 2011.
/s/ J. Stuart Segrest /s/ Steve Bullock J. Stuart Segrest Steve Bullock Rule Reviewer Attorney General Department of Justice Certified to the Secretary of State July 5, 2011.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
