Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF CORRECTIONS

OF THE STATE OF MONTANA

In the matter of the adoption of New Rules I and II pertaining to a day reporting program

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On February 8, 2011, at 10:00 a.m., the Department of Corrections will hold a public hearing in Room 4-65 at 5 South Last Chance Gulch, at Helena, Montana, to consider the proposed adoption of the above-stated rules.

2. The Department of Corrections 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 Department of Corrections no later than 5:00 p.m. on January 21, 2011, to advise us of the nature of the accommodation that you need. Please contact Cheryl Waits, Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620; telephone (406) 444-4906; fax (406) 444-7909; or e-mail cwaits@mt.gov.

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

NEW RULE I DEFINITIONS For the purposes of this chapter, these definitions apply:

(1) "Board" means the Board of Pardons and Parole as authorized in 2-15-2302 and 46-23-104, MCA.

(2) "Conditional Release" means the placement by the department of an offender into the community under the jurisdiction of the department and subject to the department's rules.

(3) "Department" means Department of Corrections as authorized in 2-15-230, MCA.

(4) "Offender" means a person convicted and sentenced for a felony offense.

(5) "Parole" means the release from incarceration by the Board of Pardons and Parole prior to the completion of an offender's sentence of incarceration.

(6) "Probation" means the district court's release of an offender into the community, subject to supervision by the department.

AUTH: 53-1-203, MCA

IMP: 53-1-203, MCA

STATEMENT OF REASONABLE NECESSITY: The department proposes to adopt NEW RULE I to define terms that are used in NEW RULE II.

NEW RULE II DAY REPORTING PROGRAM (1) The department may establish and administer a day reporting program in any geographic region deemed appropriate by the department. The department may also contract with a Montana corporation to operate a day reporting program in a Montana community deemed appropriate by the department.

(2) The purposes of the day reporting program are to:

(a) provide an alternative sentencing option as a condition of a deferred or suspended sentence;

(b) provide a structured program for closer supervision of offenders on probation, parole, or conditional release;

(d) provide a program that can be used to transition offenders from secure facilities into the community.

(3) Pursuant to 46-18-201, MCA, a court may make participation in the day reporting program a condition of a deferred or suspended sentence. Additionally, the department may, in its sole discretion, place an offender in the program if the department determines that the offender requires that level of supervision.

(4) While in a day reporting program the offender must abide by all the standard probation and parole conditions, any special conditions imposed by the court or the board, and at a minimum, the following program rules:

(a) The offender must, at the direction of the day reporting officer, maintain a telephone land-line or other means of electronic monitoring.

(b) The offender must maintain and abide by a written weekly schedule that includes the specific times the offender will be at work, counseling or treatment, or other significant events.

(d) The offender must abide by the curfew set by the day reporting program officer.

(e) The day reporting program shall have zero tolerance for alcohol and drug use. To assure compliance with the zero tolerance rule, the offender shall be subject to regular and random urinalysis and breath tests.

(f) While in the program, the offender must check-in daily by phone or other means as directed by the day reporting officer and must abide by the following face-to-face meeting schedule with the day reporting officer or designee:

(i) in Phase I, the offender is required to meet daily;

(ii) for the first 30 days of Phase II, the offender is required to meet twice a week; and

(iii) for the final 30 days of Phase II, the offender is required to meet once a week.

(5) An offender who violates program rules is subject to the following:

(a) arrest;

(b) revocation of probation, parole, or conditional release;

(d) imposition of new program rules;

(e) lowering of the offender's program phase; and

(f) a requirement of more time in the program.

AUTH: 53-1-203, MCA

IMP: 46-18-201, 46-18-225, 46-23-1015, 53-1-203, MCA

STATEMENT OF REASONABLE NECESSITY: The 59^th Montana Legislature enacted House Bill 726 which authorizes the department to establish a day reporting program. The main provisions of House Bill 726 are codified in 53-1-203, MCA. 53-1-203, MCA also contains the authority to adopt administrative rules to implement a day reporting program. The department proposes to adopt NEW RULE II to set the minimum requirements for a day reporting 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: Cheryl Waits, Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620; telephone (406) 444-4906; fax (406) 444-7909; or e-mail cwaits@mt.gov, and must be received no later than 5:00 p.m., February 10, 2011.

5. Diana Koch, Department of Corrections, 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 Myrna Omholt-Mason, 5 South Last Chance Gulch, Helena, Montana, 59620 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 of HB 726 was contacted by phone on October 7, 2010.

/s/ Diana Koch /s/ Mike Ferriter

Diana Koch Mike Ferriter

Rule Reviewer Director

Department of Corrections

Certified to the Secretary of State January 3, 2011.