BEFORE THE DEPARTMENT OF JUSTICE

OF THE STATE OF MONTANA

TO: All Concerned Persons

1. On April 16, 2007, at 10:00 a.m., the Department of Justice will hold a public hearing in the classroom of the Forensic Science Division of the Department of Justice, 2679 Palmer, Missoula, Montana, to consider the amendment of 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 April 2, 2007, to advise us of the nature of the accommodation that you need. Please contact Jon Ellingson, Department of Justice, 215 North Sanders, P.O. Box 201401, Helena, MT 59620-1401; telephone (406) 444-2026; fax (406) 444-3549; or e-mail jellingson@mt.gov.

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

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

(1) through (4) remain the same.

(5) "Annual" means yearly or once a year, but does not in itself signify what time in a year. See Black's Law Dictionary 2 (6th ed. 1990) once every 365 days.

(6) remains the same.

(7) "Authorized designee" means a breath test specialist/operator selected by the breath test specialist/senior operator to perform the senior operator's duties. in the event of the senior operator's absence.

(8) and (8)(a) remain the same.

(b) any approved device which is designed to detect and verify the presence of alcohol or provide an estimated value of alcohol concentration, i.e., a PAST device.

(9) through (19) remain the same.

(20) "Breath test specialist" means a person qualified under these rules to use a breath analysis instrument or a preliminary alcohol screening test device. Depending on the person's degree of training as set forth in ARM 23.4.216, he/she may be certified as:

(a) through (30) remain the same.

(31) "Test," in reference to a breath analysis, means a full and complete analysis of properly delivered breath sample(s) or samples. Such analysis is to be considered complete when the breath analysis instrument has executed its prescribed program, a final result known as the reported alcohol concentration is obtained, and a printed record is produced by the breath test instrument. All breath analysis must be performed in accordance with the procedures set forth by the Forensic Science Division. In reference to other biological sample analysis, a test shall be defined as a full and complete analysis of the received sample or samples. A test of the sample may consist of more than one analysis of the submitted sample or samples in accordance with the procedures set forth by the Forensic Science Division.

(32) remains the same.

AUTH: 61-8-405, MCA

IMP: 61-8-405, MCA

REASON: 23.4.201(5): In the case of State v. Frickey, 2006 MT 122, 332 Mont. 255, 136 P.3d 558 (2006), the Montana Supreme Court defined "annual" to mean "once every 365 days." The definition provided by the Supreme Court requires this rule change.

23.4.201(7): There has been confusion over what constitutes an "absence" under the present rules. This change is needed to permit the breath test specialist/senior operator to direct the "authorized designee" to perform the operator's duties whenever it may become necessary or desirable in the management of the senior operator's duties.

23.4.201(8)(b): This amendment is required to clarify that a PAST device is not a breath test instrument under the definitions within these rules.

23.4.201(20): This change is necessary to correct an inaccuracy in the rules. The specialist is qualified to use a "device" not a "test."

23.4.201(31): New instrumentation and procedures require the use of multiple samples before a final result, known as the "reported alcohol concentration," is stated by the breath analysis instrument. This change is necessary to reflect the changes in procedures and instrumentation. The change in the last sentence of the rule is a language clarification.

23.4.213 FIELD CERTIFICATION OF BREATH ANALYSIS INSTRUMENTS AND ASSOCIATED EQUIPMENT (1) Breath analysis instruments shall be field certified for accuracy at least once every seven 31 days by a breath test specialist/senior operator, or in the event of a senior operator's absence, his/her authorized designee, using an ethyl alcohol water standard or an ethyl alcohol gas standard which has been approved by the division and using the field certification report form for the breath analysis instrument being certified.

(a) remains the same.

(b) A field certification is valid when the results of the approved standard are at plus or minus 10% of target value. The results of the field certification shall be reported to the third decimal (.000) and recorded on the field certification report form. If a test record card or tape is used, it shall be affixed to the field certification report which is to be kept at the testing location, and a copy of the field certification report will be prepared for the division. All field certification reports will be sent to the division on a monthly basis.

(c) The approved ethyl alcohol water standard will not be used for longer than three months after its first date of use. This use and time limitation does not apply to the ethyl alcohol gas standard. The ethyl alcohol gas standard will not be used beyond the expiration date listed on the standard.

(d) remains the same.

(e) A field certification shall be performed whenever a new breath analysis instrument is placed in service or when a breath analysis instrument is returned to service. In addition, whenever a breath analysis instrument is placed in a mobile service capacity, a field certification shall be done prior to the day's use and again at the end of the day's use. The field certification results must be on file at the testing location before the breath analysis instrument can be used for subject testing.

(f) through (i) remain the same.

(j) A breath analysis instrument's field certification shall be considered valid for seven 31 days forward from the date of a proper field certification.

(2) through (2)(b) remain the same.

(c) Results of a field certification analysis outside the range specified in (2)(b) shall be confirmed/adjusted by the breath test specialist/senior operator, or his/her authorized designee. If the test results are still out of the specified range, the PAST will be removed from service.

(d) through (e)(ii) remain the same.

(iii) the results obtained; and if an adjustment was made;

(iv) through (f) remain the same.

AUTH: 61-8-405, MCA

IMP: 61-8-405, MCA

REASON: 23.4.213(1): New instrumentation performs an accuracy verification with every test using both external and internal controls. This new safeguard for accuracy eliminates the need for field certification every seven days. This rule change is necessary to take advantage of the accuracy of the new breath analysis instruments. The language relating to a "senior operator's absence" has been eliminated to conform with the proposed changes to ARM 23.4.201(7) for the reasons stated above.

23.4.213(1)(b): The new instruments use a tape instead of a card when no external printer is available or online. This rule change is necessary to reflect this capability. The remaining changes are for purposes of clarification.

23.4.213(1)(c): This change is required to specify the appropriate expiration date for application to an ethyl alcohol gas standard.

23.4.213(1)(e): New instruments have the capability of being used at mobile locations. This rule change is needed to assure that the instruments are accurate when used in a mobile service capacity.

23.4.213(1)(j): This rule change is required for consistency with the change proposed in ARM 23.4.213(1) and for the same reason.

23.4.213(2)(c) and (2)(e)(iii): If adjustments are made to a PAST device in the field certification process, that adjustment must be recorded in the records for each device. These rule changes are necessary to record what adjustments have been made to the PAST devices in order to maintain their accuracy and in order to substantiate the accuracy of test results in evidentiary proceedings.

23.4.214 LABORATORY CERTIFICATION (1) remains the same.

(a) a field certification performed to establish the current status of the breath analysis instrument;

(b) remains the same, but is renumbered (a).

(c) (b) a series of controlled ethyl alcohol water/gas standards shall be analyzed with an accuracy requirement of +/- 5% or .005, whichever is greater on all target values;

(d) remains the same, but is renumbered (c).

(e) (d) a review of the breath analysis instrument's sensitivity for the detection of any interfering substances.

(2) and (3) remain the same.

(4) All breath analysis instruments received from the division either after the laboratory certification, preventive maintenance, or after repair, must have a field certification performed by the breath test specialist/senior operator or his/her authorized designee, as set forth in ARM 23.4.213 prior to analysis of any subjects subject's breath.

(5) remains the same.

AUTH: 61-8-405, MCA

IMP: 61-8-405, MCA

REASON: 23.4.214(1)(a): This subsection may be deleted because field certification has no relationship to laboratory certification and should not be included in a rule that addresses the requirements for laboratory certification.

23.4.214(1)(c): This change is required to permit the use of gas standards in addition to water standards.

23.4.214(1)(e): This is a stylistic/grammatical change that is not substantive.

23.4.214(4): This is a stylistic/grammatical change that is not substantive.

23.4.215 QUALIFICATION OF BREATH ANALYSIS LOCATION

(1) through (6) remain the same.

(7) Mobile testing locations may be designated upon the request of a law enforcement agency if the division feels that such location is warranted. All mobile testing shall be done in a manner approved by the division. No formal application is required.

(7) remains the same but is renumbered (8).

AUTH: 61-8-405, MCA

IMP: 61-8-405, MCA

REASON: 23.4.215(7): This change is required to allow law enforcement to take advantage of mobile capabilities of new testing devices that the state is acquiring.

23.4.216 QUALIFICATIONS OF PERSONNEL (1) remains the same.

(2) A permit shall be issued to a person successfully completing the training. Such permit will have the specialist's expiration date displayed.

(3) and (4) remain the same.

(5) A permit shall be issued to a person successfully completing the training. Such permit will have the specialist's expiration date displayed.

(6) and (7) remain the same.

AUTH: 61-8-405, MCA

IMP: 61-8-405, MCA

REASON: 23.4.216(2) and (5): The department is adopting a card permit system where certification information is coded by a 2D Bar Code on the plastic card. The new breath test instrumentation will limit use of the system to only those who have a valid permit card that is properly encoded. The expiration date cannot be "displayed" on such a card.

23.4.217 RECERTIFICATION OF BREATH TEST PERSONNEL

(1) through (3) remain the same.

(4) Permits shall be issued to all individuals successfully completing the breath test specialist recertification training. Such permit shall have the specialist's certification date displayed. The permit expires the last day of the month, in the following year in which the specialist was certified.

(5) All breath test specialist/operators shall be recertified on an annual a regular basis by attending a recertification course approved by the division.

(6) In addition to the annual regular recertification, all breath test specialist/senior operators may be recertified by a representative of the division once every two years on a schedule to be determined by the division.

(7) remains the same.

(8) The breath test specialist/senior operator is still required to submit an annual examination based on the material he/she is presenting to the breath test specialist/operators, in addition to the biannual recertification which may be conducted by the division.

(9) A permit will be issued to all individuals successfully completing the senior operator's recertification training. Such notification shall have the specialist's certification date displayed. Certification expires the last day of the month, in the following year in which the specialist was certified.

(10) through (13) remain the same.

AUTH: 61-8-405, MCA

IMP: 61-8-405, MCA

REASON: 23.4.217(4) and (9): The department is adopting a card permit system where certification information is coded by a 2D Bar Code on the plastic card. The new breath test instrumentation will limit use of the system to only those who have a valid permit card that is properly encoded. The expiration date cannot be "displayed" on such a card.

23.4.217(5) and (6): These changes substituting "regular" for "annual" are to prevent a rule violation given the definition of "annual" provided by the Supreme Court in the Frickey case. The certification or recertification will expire as provided by (4) and (9). This time period may be up to one month longer than 365 days.

23.4.217(8): This language change brings this portion of the rule into conformity with (6).

23.4.220 COLLECTION OF BLOOD SAMPLES FOR DRUG AND/OR ALCOHOL ANALYSIS (1) Blood samples will be collected from living individuals only by persons authorized by current law, upon written request of a peace officer or officer of the court. Blood samples that are drawn or analyzed by medical staff for medical diagnostic or treatment purposes, and not at the request of a peace officer or an officer of the court, are exempt from these rules.

(2) through (3)(c) remain the same.

(d) paper evidence seal to be signed and dated.

(4) through (7) remain the same.

AUTH: 61-8-405, MCA

IMP: 61-8-405, MCA

REASON: 23.4.220(1): This change is necessary to clarify that blood samples drawn by medical staff personnel for treatment or diagnostic purposes are not subject to the rules provided in this section.

23.4.220(3): Paper seals have been replaced by "evidence" seals. This rule change is required to reflect this practice.

23.4.225 PRELIMINARY ALCOHOL SCREENING TESTS (PASTs)

(1) through (4) remain the same.

(5) All PAST results will be recorded in a manner approved by the division. As presently used, the results shall be reported only as positive or negative.

(6) PAST results of 0.020 G/210L or greater shall be considered positive for the presence of alcohol, and PAST results of less than 0.020 G/210L shall be considered negative for the presence of alcohol.

AUTH: 61-8-405, MCA

IMP: 61-8-405, MCA

REASON: 23.4.225(5) and (6): PAST devices have limitations in their accuracy and precision as presently used, and should be used only to record the presence or absence of alcohol and should not be used as evidence of a particular level of breath alcohol. A breath alcohol result of less than 0.020 grams per 210 liters of breath should be considered a negative result given the limitations of the devices as presently used. The rule changes contained in these sections are necessary to reflect the limitations of PAST devices as presently used.

4. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to: Jon Ellingson, Department of Justice, 215 North Sanders, P.O. Box 201401, Helena, MT 59620-1401; telephone (406) 444-2026; fax (406) 444-3549; or e-mail jellingson@mt.gov. Any comments must be received no later than April 19, 2007.

5. Jon Ellingson, Department of Justice, has been designated to preside over and conduct the hearing.

6. An electronic copy of this Notice of Proposed Amendment is available through the Department of Justice's web site at http://doj.mt.gov/resources/administrativerules.asp. The department 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 Department of Justice 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.

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, which includes the name and mailing address of the person, and specifies for which program the person wishes to receive notices. Such written request may be mailed or delivered to the contact person in paragraph 4 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, do not apply.

By: /s/ Mike McGrath                                                  /s/ Jon Ellingson         

Mike McGrath                                                            Jon Ellingson

Attorney General                                                        Rule Reviewer

Department of Justice

Certified to the Secretary of State March 12, 2007.