The Montana Highway Patrol Captain and Kalispell lawmaker who sponsored the state’s 24/7 Sobriety Program said he is “shocked” that a Lincoln County judge ruled the 2011 law unconstitutional but is confident the program would withstand the decision as the matter moves to the state Supreme Court.
On Feb. 5, District Judge James Wheelis in Libby ruled the 24/7 program, which requires people charged with at least two drunken driving offenses to take twice-daily alcohol breath tests as a condition of pretrial release, was unconstitutional because it amounts to punishment before conviction. Montana Attorney General Tim Fox appealed the decision, sending it to the Montana Supreme Court. Fox’ office noted that the Wheelis ruling only applies to Lincoln County.
Rep. Steve Lavin of Kalispell, a Montana Highway Patrol trooper for more than two decades, sponsored House Bill 106 in 2011, expanding the program across the state.
“We wanted to try something different and dynamic to address the DUI problem in Montana because what we were doing wasn’t working,” Lavin said. “It holds people accountable and addresses the problem instead of just throwing people in jail.”
Lavin said the program has been wildly successful and helped many people stay away from alcohol. He pointed out that paying for the $2 test twice a day is less expensive than drinking.
Lavin said no other judge has found the law unconstitutional in either Montana or South Dakota, where the program originated.
“I was kind of shocked and surprised (by the Wheelis ruling) because it’s working so well. It’s tested and proven policy,” he said. “I’m very confident that the law will be upheld because it’s working so well in Montana and South Dakota.”
Montana ranked as the deadliest state per capita for DUI-related traffic fatalities in 2008, according to the state Department of Justice. In response to what some called Montana’s out-of-control “culture of drinking and driving,” the attorney general’s office proposed the Montana 24/7 Sobriety Program in 2010, with an initial pilot program in Lewis and Clark County. During that test period, 99 percent of the tests administrated came back clean.
Yet lawyers for a man in Lincoln County argue the program amounts to pretrial punishment. Richard Spady was arrested on April 20, 2013, and charged with careless driving and driving under the influence. At a hearing two days later in Lincoln County Justice Court, a judge ordered Spady to participate in the 24/7 Sobriety Program. Spady had a previous DUI charge in late 2006 – that fell outside of the five-year “look back” period in place at the time of Spady’s arrest. Just four days after that initial court appearance, on April 26, House Bill 355, which increased the “look back” period from five years to 10 years, went into effect.
Spady participated in the program through the spring and summer, but he failed to appear or was late for testing on three separate occasions. On each of those dates, Spady was arrested and charged with criminal contempt. Spady appealed the Justice Court charges, arguing they were unconstitutional. Wheelis agreed and dismissed the charges, saying the fees that defendants pay for the testing are non-refundable if the person is acquitted and amounted to a violation of someone’s right to due process. Wheelis also said the law is vague and that the Legislature “has not placed sufficient language within the statue to provide judges, law enforcement agencies, or the attorney general with minimal legal guidelines to ensure indiscriminate and non-arbitrary application of the law.”
The attorney general’s office disagreed and filed an appeal immediately after Wheelis’ decision.
“Combatting DUI is a priority for Attorney General Tim Fox, and the 24/7 Sobriety Program is an effective took in curtailing not only repeat DUI offenses but other alcohol-related crimes as well,” said John Barnes, director of communications for the Department of Justice. “It has been proven to work not only in Montana but other states as well.”