Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF JUSTICE

OF THE STATE OF MONTANA

In the matter of the adoption of New Rules I-IX establishing the 24/7 sobriety program

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NOTICE OF ADOPTION

TO: All Concerned Persons

1. On July 14, 2011, the Department of Justice published MAR Notice No. 23-3-220, pertaining to the public hearing on the proposed adoption of the above-stated rules at page 1246 of the 2011 Montana Administrative Register, Issue Number 13.

2. The department has adopted the following rules as proposed: NEW RULES III (23.18.303), VI (23.18.306), VII (23.18.307), and IX (23.18.309).

3. The department has adopted the following rules as proposed, but with changes from the original proposal, new matter underlined, deleted matter interlined:

NEW RULE I (23.18.301) DEFINITIONS (1) through (8) remain as proposed.

(9) "Continuous remote Ttransdermal alcohol monitoring device" means a device that is capable of remote 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 between a participating vendor and a participating agency that establishes the services the participating vendor and a participating agency will provide, ~~and~~ 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.

AUTH: 2011 Mont. Laws, ch. 318, § 4

IMP: 2011 Mont. Laws, ch. 318, § 4

NEW RULE II (23.18.302) PLACEMENT IN THE 24/7 SOBRIETY PROGRAM (1) remains as proposed.

(2) An order or directive placing a participant in the program ~~must~~ 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 submit to testing through a continuous remote 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) remains as proposed.

AUTH: 2011 Mont. Laws, ch. 318, § 4

IMP: 2011 Mont. Laws, ch. 318, §§ 3, 4, 5

NEW RULE IV (23.18.304) TESTING AUTHORIZED (1) and (2) remain as proposed.

(3) A participant alternatively may be ordered to submit to continuous remote transdermal alcohol monitoring on a continuous remote transdermal alcohol monitoring device. ~~if:~~ Factors to be considered include whether:

(a) a device is available;

(b) the participant is capable of paying the fees and costs associated with continuous remote transdermal alcohol monitoring;

(d) ~~it is determined that~~ the participant does not qualify for twice-daily breath tests because of one or more of the following:

(i) through (4) remain as proposed.

AUTH: 2011 Mont. Laws, ch. 318, § 4

IMP: 2011 Mont. Laws, ch. 318, §§ 3, 4

NEW RULE V (23.18.305) PARTICIPANT FEES (1) remains as proposed.

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

(a) through (c) remain as proposed.

AUTH: 2011 Mont. Laws, ch. 318, § 4

IMP: 2011 Mont. Laws, ch. 318, §§ 3, 4, 6

NEW RULE VIII (23.18.308) DATA MANAGEMENT SYSTEM (1) and (2) remain as proposed.

(3) The data management system must support breath testing, continuous remote transdermal alcohol monitoring, drug patch testing, and urinalysis testing.

(4) and (5) remain as proposed.

AUTH: 2011 Mont. Laws, ch. 318, § 4.

IMP: 2011 Mont. Laws, ch. 318, §§ 3, 4, 6

4. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

COMMENT 1: The law and justice interim committee expressed concern that some of the mandatory language in NEW RULES II and IV could be viewed as encroaching upon the judicial branch's sentencing authority.

RESPONSE 1: The language in NEW RULE II describing what "must" be included in an order and the language in NEW RULE IV describing the relevant factors for transdermal monitoring was not intended to intrude upon the judiciary, and the department has modified the language to address the committee's concern. The department's intent in requiring an order or directive to specify the type of testing and the length of time of testing was to inform the participant and the participating agency of necessary information regarding the participant's placement in program. As a practical matter, this language should be included in an order or directive that places a participant in the program. The language in NEW RULE IV reflected that twice-daily breath tests are the primary testing method of the 24/7 Sobriety Program. Though NEW RULE IV has now been modified, twice-daily breath testing remains the primary testing method.

COMMENT 2: A commenter suggested that the definition of "transdermal alcohol monitoring device" in NEW RULE I should be further defined to include the words "continuous" and "remote" to differentiate this method of testing from point-in-time testing. The commenter also offered an alternative definition for this type of testing.

RESPONSE 2: The department agrees that adding the terms "continuous" and "remote" clarifies the definition and included the terms in the rule. The department does not believe these changes affect the intent or substance of the rule.

COMMENT 3: A commenter stated that, based upon the statutory language, the definitions contained in NEW RULE I were accurate and were useful to clarify and standardize aspects of the 24/7 Sobriety Program.

RESPONSE 3: The department acknowledges and appreciates the comment.

COMMENT 4: A commenter stated that NEW RULE II contained necessary processing information, such as the requirement of an order, the type of testing, and the length of time for testing. The commenter stated that this rule would answer questions about how an individual is placed in the 24/7 Sobriety Program and the duration of time that an individual would be in the program. The commenter stated that this rule was necessary to provide consistency for enrollment in the program.

RESPONSE 4: The department acknowledges and appreciates the comment. As mentioned in the response to COMMENT I, however, language in NEW RULE II stating that a court order "must" contain certain information has been modified to state that a court order "should" contain the information.

COMMENT 5: A commenter observed that, though the Montana 24/7 Sobriety Program Act defines testing to include breath testing, drug patch testing, urinalysis, or continuous or transdermal alcohol monitoring, proposed NEW RULE V addresses only the fees associated with twice-daily breath tests and continuous or transdermal alcohol monitoring. The commenter suggested adding language concerning fees for urinalysis and drug patch testing.

RESPONSE 5: The department agrees with the commenter's observations that NEW RULE V only addressed the fees for breath-testing and continuous or transdermal alcohol monitoring. The department observes that this comment could also apply to NEW RULE IV, which sets forth the testing authorized for the 24/7 Sobriety Program. The department will not expand NEW RULE IV or NEW RULE V at this time. The primary focus of the 24/7 Sobriety Program is on repeat DUI offenses involving alcohol. In the future, the department will work to establish reasonable, consistent fees for urinalysis testing and drug patch testing. Once that task is accomplished, the department will propose an amendment to the administrative rules. The department notes that the Montana 24/7 Sobriety Program Act includes urinalysis and drug patch testing within the definition of "testing," and these rules should not be interpreted as prohibiting these types of testing.

COMMENT 6: A commenter expressed support for the proposed rules and stated that, by setting the specific manner in which fees should be handled in NEW RULE VI and NEW RULE VII, the 24/7 Sobriety Program will have the flexibility to adapt to changes that may arise in the program.

RESPONSE 6: The department acknowledges and appreciates the comment.

COMMENT 7: A commenter stated that there is a potential inconsistency between NEW RULE V and NEW RULE VI. The commenter states that, under NEW RULE VI, it appears that a participating agency will receive an administrative fee. However, according to the commenter, NEW RULE V, when read in conjunction with NEW RULE I(10)—the definition of "vendor agreement"—may prohibit a participating agency from charging a fee. The commenter suggested adding language to NEW RULE I and NEW RULE V to clarify the situation.

RESPONSE 7: The department disagrees that the rules are inconsistent. For the sake of clarity, language has been added to the definition of "vendor agreement" in NEW RULE I that should address the commenter's concerns. The department does not believe these changes affect the intent or substance of the rule.

COMMENT 8: A commenter stated that individual participating agencies may be able to negotiate cheaper rates with vendors for local service than rates the department could obtain. The commenter stated that the department should not limit itself to that possibility.

RESPONSE 8: Participating agencies should adhere to the terms in the vendor agreements. For the 24/7 Sobriety Program to be successful in Montana, all counties must have the ability to implement the program, regardless of a county's population or its financial status. While some participating agencies or counties may have the capacity to negotiate rates with vendors, many of Montana's counties lack this level of bargaining power. The department's concern is that, without agreements that apply equally to all counties, vendors would have little incentive to serve rural Montana communities. To address this concern, the Attorney General has negotiated agreements with vendors that require vendors to provide service to all counties in Montana at consistent, reasonable rates.

COMMENT 9: The department received comments expressing support for the rules and emphasizing that all participating agencies must use the same data management system to ensure that the results of the 24/7 Sobriety Program are accurate, consistent, and uniform throughout Montana. A commenter stated that the data management system is integral to standardizing the program statewide and as a tool to validate the program's effectiveness.

RESPONSE 9: The department acknowledges and appreciates the comments.

COMMENT 10: A commenter described the 24/7 Sobriety Program Management Group established by Rule IX as "a worthwhile effort" based on South Dakota's experiences with its 24/7 Sobriety Program. The commenter stated that the group provides a means for local jurisdictions to suggest improvements or express concerns, and the commenter stated that the local input combined with the management group's first-hand experience with the 24-7 Sobriety Program would allow the group to occupy the best position to improve the program if necessary.

RESPONSE 10: The department acknowledges and appreciates the comment.

COMMENT 11: A commenter proposed that NEW RULE IX be modified to state that all devices used in the 24/7 Sobriety Program must be approved by the 24/7 Sobriety Program Management Group.

RESPONSE 11: While the 24/7 Sobriety Program Management Group may have a future role in approving testing devices, this is not the intended purpose of the management group. The primary purpose of the group is to review the program after it has been in effect and to make recommendations to the Attorney General regarding possible improvements to the program or the administrative rules to ensure that the legislative goals of the Montana 24/7 Sobriety Program Act are being met. Including members from rural and urban areas and from eastern and western Montana ensures that counties, regardless of location or population, will have a voice in shaping the future of the 24/7 Sobriety Program.

COMMENT 12: A commenter stated that, for rehabilitative or public safety purposes, the Department of Corrections may require "conditional release" offenders with a history of alcohol abuse and/or whose offense involved alcohol to participate in the 24/7 Sobriety Program. The program could also be imposed on offenders who violated their community supervision if the offenders had a history of alcohol abuse, if the offenders' offenses involved alcohol, or if the offenders' community supervision violation involved alcohol.

RESPONSE 12: The department acknowledges and appreciates the comment.

/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 on September 12, 2011.