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 and II pertaining to Ignition Interlock Devices

)

NOTICE OF PROPOSED ADOPTION

NO PUBLIC HEARING CONTEMPLATED

TO: All Concerned Persons

1. The Department of Justice proposes to adopt the above-stated rules about ignition interlock devices due to comments received in response to MAR Notice No. 23-3-245, proposed in Issue No. 23 and amended in Issue No. 24 of the 2016 Montana Administrative Register and adopted in Issue No. 12 of the 2017 Montana Administrative Register.

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 Motor Vehicle Division no later than 5:00 p.m. on October 6, 2017, to advise us of the nature of the accommodation that you need. Please contact Michele Snowberger, Department of Justice Motor Vehicle Division, 302 North Roberts, P.O. Box 201430, Helena, Montana, 59620; telephone (406) 444-1776; fax (406) 444-1776; or e-mail [email protected].

3. The rules as proposed to be adopted provide as follows:

NEW RULE I DEFINITIONS The following definitions apply throughout this chapter:

(1) "Certificate holder" means the manufacturer or vendor who the department has issued a certificate authorizing the use of a particular IID, or a manufacturer or vendor to install, service, calibrate, remove, and monitor certified IIDs.

(2) "Circumvention" means the attempted or successful bypass of an ignition interlock device (IID), including but not limited to:

(a) operating a vehicle without a properly functioning IID;

(b) disconnecting any part of the IID including the control head while the vehicle is in operation;

(d) introducing any breath sample from an air compressor, manual air pump, or other mechanical device to start, attempt to start, or operate a vehicle equipped with an IID;

(e) introducing a breath sample from someone who is not the restricted driver;

(f) introducing any altered, diluted, contaminated, stored, or filtered breath sample;

(g) intentionally disrupting or blocking a digital image identification device;

(h) operating the interlock vehicle after the IID detects excess breath alcohol.

(3) "Manufacturer" means the person, company, or corporation who produces the IID.

(4) "Manufacturer representative" means the employee designated to act on behalf of and/or represent the manufacturer in all matters relating to the IID certification process, compliance, and reporting requirements with the State of Montana.

(5) "Service center" means a location where certified IIDs are serviced, installed, monitored, removed, and calibrated.

(6) "Tampering" means any act or attempt to disable or circumvent the operation of an IID.

(7) "Vendor" means a person, company, business, or distributor who is contracted by a manufacturer to manage the installation, calibration, and removal of IIDs.

(8) "Vendor representative" means the employee designated to act on behalf of and/or represent the vendor in all matters relating to the repair, installation, calibration, and removal of IIDs.

(9) "Violation reset" means a driver had a violation requiring an unscheduled service of the IID.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

NEW RULE II LOW BREATH VOLUME MEDICAL EXEMPTION (1) An individual, manufacturer, or vendor may request to lower the minimum breath sample because a restricted driver has diminished lung capacity.

(2) Diminished capacity may be established through documentation submitted to the department by the appropriate judicial authority or by a medical professional.

(3) It is solely within the department's discretion to issue an exemption.

AUTH: 61-8-441, MCA

IMP: 61-8-441, MCA

REASON: On June 23, 2017, the Department of Justice published MAR Notice No. 23-3-245 pertaining to the adoption of new rules relating to ignition interlock devices at page 896 of the 2017 Montana Administrative Register, Issue Number 12. The department had previously conducted a public hearing on the proposed adoption of the ignition interlock device rules on January 18, 2017. During that hearing, commenters brought up the need for a rule relating to definitions of terms used in the proposed rules as well as the need for a rule addressed to low breath volume medical exemptions. The department has determined that those comments were instructive and valuable and has therefore put forth this proposal to adopt additional rules in those two areas.

4. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to Michele Snowberger, Department of Justice Motor Vehicle Division, 302 North Roberts, P.O. Box 201430, Helena, Montana, 59620; telephone (406) 444-1776; fax (406) 444-1776; or e-mail [email protected], and must be received no later than 5:00 p.m., October 20, 2017.

5. If persons who are directly affected by the proposed action 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 Michele Snowberger at the above address no later than 5:00 p.m., October 20, 2017.

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 3 persons based on the number of interlock providers. No member of the general public has requested to be on the notice list.

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 2 above or may be made by completing a request form at any rules hearing held by the department.

8. The bill sponsor notice requirements of 2-4-302, MCA, have been fulfilled. Senator Bill Wilson was originally contacted concerning ignition interlock device rulemaking by letter dated January 13, 2017. He will be contacted again concerning these additional rules prior to September 15, 2017.

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

/s/ Matthew T. Cochenour /s/ Timothy C. Fox

Matthew T. Cochenour Timothy C. Fox

Rule Reviewer Attorney General

Department of Justice

Certified to the Secretary of State September 11, 2017.