Under the influence 

The 2011 Legislature has taken aim at drunk driving. But Montana's drinking culture may be too much for lawmakers to take down.

The sign behind the bar at Miller's Crossing on Park Avenue in Helena clearly states the watering hole's right to refuse service to anyone who appears intoxicated. And on a recent Friday night, it's a right seven-year bartender Eric Blewett isn't afraid to enforce. Some of his patrons appear just a few drinks away from the slurred speech and shuffling demeanor that signal an altered state of mind. Perhaps they have designated drivers or plan on walking, Blewett says, but better he cuts them short and calls a cab than risk them navigating the road home impaired.

"I'm all for not having people out drunk on the roads," Blewett says. "That's the last thing I want. My goal is to let people come down, have a fun time with us and get home safe."

Tonight that includes a throng of state legislators, lobbyists, legislative aides and members of the press. The majority of those at the bar have arrived to unwind after a grueling week of committee hearings and testimony, and to brace themselves for a Saturday morning dominated by floor sessions and votes. Tables and booths are crammed with a who's who of prominent political figures, from freshman legislators to Republican heavy-hitters—too many to run down name by name.

click to enlarge PHOTO BY CHAD HARDER

This scene isn't unlike the packed confines of the Kettlehouse or Sean Kelly's, where the five o'clock bell ushers in a sea of post-work shop-talk, friendly debate and casual griping. Conversation starts and ends with a pitcher of beer or a gin and tonic; libation is very much the means of relaxation. But there's a palpable sense of self-discipline here. With so many at Miller's tied closely to the glut of DUI bills now cycling through the Montana Legislature, the pressure to adhere to legal limits and safe drinking seems concentrated. That's not to say the party isn't going strong. It's every bit a slice of Montana's after-hours culture.

"I think people who don't know them have this mystique, like, 'Oh, they're legislators,'" Blewett says. "But they're really good at—if one of them is going to drink—making sure they have a driver. They're like us."

The atmosphere isn't confined to Miller's either. Popular Helena haunts like Blackfoot Brewing, the Windbag, Jorgenson's Restaurant and Lounge and the Silver Star Steak Company all draw the Capitol crowd. The legislative session's nightlife serves as something of a legend in Montana; Gov. Brian Schweitzer went so far as to characterize the state's lawmakers as "the biggest boozers" last December, citing a 24 percent spike in alcohol sales in Helena recorded by the Department of Revenue during the 2009 session. Legislators rankled at Schweitzer's seeming disrespect. Rep. Walter McNutt, R-Sidney, called the governor's comment a "pretty cheap shot." Others loudly defended their presence in Helena as an effort to do good work on behalf of their constituents.

But the Department of Revenue's data—and the crowded nature of Helena bars throughout the session—appear to support Schweitzer's statement. The need for a multi-layered crackdown on DUI offenses in Montana is widely recognized; many state lawmakers believe it may be one of the only issues this session that transcends the party divide. Montana has ranked among the worst states in the nation for DUI convictions and DUI-related traffic fatalities for decades. According to data from the Montana Department of Transportation (MDT), the state has maintained a roadside fatality rate above the national average since 1966. In 2009, 69 percent of all roadside fatalities resulted from one-vehicle accidents, and 10.2 percent of those crashes involved alcohol or drugs.

click to enlarge Rep. Kristin Hansen, R-Havre, has introduced a bill this session to make a third DUI offense in Montana a felony. Hansen says the move could help interrupt the pattern of behavior that leads to repeat drunk drivers. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Rep. Kristin Hansen, R-Havre, has introduced a bill this session to make a third DUI offense in Montana a felony. Hansen says the move could help interrupt the pattern of behavior that leads to repeat drunk drivers.

The staggering statistics prompted the last Montana Legislature to order an interim study on what lawmakers could do to curb drunk driving. Yet the Legislature itself has over the years displayed a fairly troubling track record for alcohol abuses, in and out of session. Only this January, Sen. Jim Shockley, R-Victor, was caught with an open container of red beer outside Missoula while driving home from Helena. The state's lawmakers—just like the state's citizens—aren't all saints when it comes to drinking and driving.

"I think it just shows that we're a pretty good cross-section or slice of humanity for Montana here," says Sen. Larry Jent, D-Bozeman. "You get 150 people and have them spend four months here, it's like a medium-sized high school."

•••

Montana boasts some of the most disquieting DUI statistics in the nation. In 2009 alone, 105 of the state's 221 traffic fatalities were linked to drunk driving, the third highest rate in the country. Law enforcement officers arrested 4,373 impaired drivers that year. The estimated economic impact of alcohol abuse to the state of Montana rests around $500 million annually, according to an unprecedented study conducted in 2009 by the University of Montana's Bureau of Business and Economic Research.

Mothers Against Drunk Driving (MADD), a 30-year-old national nonprofit dedicated to combating alcohol abuse, regularly ranks Montana among the 10 worst states in the nation for DUI-related offenses and fatalities. The National Highway Traffic Safety Administration named Montana the deadliest state in the country for drunk driving accidents in 2008, with a fatality rate more than double the national average; that distinction came despite a decline in the DUI death rate from 2007. Many of those taking their own lives and the lives of others in hand have already established a pattern of behavior when it comes to drinking and driving.

"If a person gets a first DUI, the chances are six out of seven that they won't ever get a second," Jent says, citing figures compiled by the Legislature's Law and Justice Interim Committee (LJIC). "But if that person does get a second DUI, it's almost inevitable they'll get a third and maybe fourth."

Compared to the statistics, Montana's DUI laws equate to what law enforcement officers and judges agree is little more than a slap on the wrist. First DUI charges bring a minimum of 24 hours in jail, $300 in fines, a six-month driver's license suspension and mandatory chemical dependency courses. Driving under the influence becomes a felony only on the fourth charge, with a maximum of five years in prison and $10,000 in fines. But those penalties clearly aren't motivating drunk drivers to change their ways; headlines across Montana in the past year have featured offenders facing their 10th, 11th and even 12th DUI conviction.

The Legislature cast a wide net last year to treat the state's drunk driving epidemic. In response to hearings, studies and testimony conducted in 2009 and 2010, the LJIC issued a 14-bill recommendation package for the 2011 Legislature. While a majority of those were aimed at revising current criminal procedures and strengthening DUI treatment and prevention, several sought to combat future DUI problems by cracking down on underage drinkers. All of those bills and more made it to the current session, but several have already failed in various committees.

click to enlarge Among the numerous DUI-related bills introduced during the 2011 Montana Legislature is an attempt to speed-up the process by which police can get warrants for blood or breath samples. The bill’s sponsor, Sen. Jim Shockley, R-Victor, was ticketed for an open container violation in January while driving home from Helena. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Among the numerous DUI-related bills introduced during the 2011 Montana Legislature is an attempt to speed-up the process by which police can get warrants for blood or breath samples. The bill’s sponsor, Sen. Jim Shockley, R-Victor, was ticketed for an open container violation in January while driving home from Helena.

One of the session's most promising LJIC-requested bills, Senate Bill 15, would add a misdemeanor aggravated DUI charge to Montana's law books. Under the proposed change, drunk drivers with a recent DUI charge or with a blood-alcohol content of at least 0.20 would face increased jail time and fines for their offense. Jent, the bill's sponsor, believes SB 15 takes the crackdown right where it needs to go: to the repeat offender.

"The problem that we focused on was basically the career drunk driver, the chronic drunk driver, the guy that does it again and again, because those were the people that were causing the fatal wrecks," Jent says. "We have a dubious distinction, statistically, of being number one or close to it. So we looked at who these people were."

Indeed, at least seven of the DUI bills introduced this session are directed at repeat offenders, who constituted 32 percent of all DUI convictions in 2009. Among the proposals is House Bill 299, sponsored by Rep. Kristin Hansen, R-Havre. The legislation would rewrite Montana law to make a third DUI a felony offense. Of the 201 incarcerated DUI felons surveyed for a UMsocial work study in 2009, roughly half said such a move would deter drunk drivers from repeating their actions. Hansen's goal is to use an earlier felony conviction to get patterned offenders into treatment through daily alcohol checks and enforced sobriety—tying HB 299 directly into the Legislature's current push to establish a permanent 24/7 sobriety project for impaired drivers through House Bill 106.

"I'm hoping with 24/7 treatment and some of the other programs that third [DUIs] will go down," Hansen says. "If we can treat people, the number of fourths should go down."

Not all of the session's attempts to combat drunk driving are so straightforward, however. Shockley has sponsored Senate Bill 42 in the hopes of making it easier for law enforcement officers to get warrants for breath, blood and urine samples from drivers. Montana does have an implied consent law, which states that the act of getting a driver's license is tantamount to agreeing to drug or alcohol testing. But Montanans still hold the right to refuse to undergo field sobriety checks; according to the Montana Department of Justice, 3,000 DUI offenders refused to blow in 2010—the highest figure in state history. Efforts to criminalize breath test refusal at local levels have been roundly rejected as unconstitutional on the basis of the Fourth Amendment.

"The multiple offenders, the first time [they get charged] they smarten up and then they won't blow again," Shockley says. "It's hard to get enough evidence...The defendant, the suspect, has his rights and one of his rights is not to blow. It comes up every year, 'Let's criminalize not blowing.' Well, that's criminalizing your Fourth Amendment right not to have your body searched without a warrant. So I got to thinking, why don't we get a warrant? Senate Bill 42 sets up a procedure so the police can get a warrant over the telephone."

click to enlarge Montana repeatedly ranks among the 10 worst states in the U.S. for DUI convictions and DUI-related fatalities. The culture of drinking that lies at the root of the epidemic is pervasive, stretching from beer-swilling summer crowds at Johnsrud Park, pictured, to the Montana Legislature itself. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Montana repeatedly ranks among the 10 worst states in the U.S. for DUI convictions and DUI-related fatalities. The culture of drinking that lies at the root of the epidemic is pervasive, stretching from beer-swilling summer crowds at Johnsrud Park, pictured, to the Montana Legislature itself.

Last spring, the city of Darby established a $500 penalty for drivers refusing to submit to a breath test in response to an up-tick in the number of roadside refusals. City and county attorneys in the Bitterroot Valley defended the law against questions of legality. Mere months later, the Missoula City Council debated its own proposal to criminalize breath test refusal, and the emergency ordinance passed May 10, 2010, with Councilman Jon Wilkins casting the only opposing vote.

Western Montana's localized initiatives set the stage for a bill introduced this session to make it illegal to decline a breath test. The proposal hit repeated snags during the LJIC's deliberations, however, and the Senate Judiciary Committee officially killed Senate Bill 308 on Feb. 18. Shockley maintains that his pitch to fast-track warrants gets around the concerns that led to SB 308's failure.

"The issue that law enforcement has is that [drunk drivers] won't cooperate, they won't do the exercises, and they won't provide a breath sample," Shockley says. "This gets around those problems, and it gets around them in a constitutional way."

As much as the state has stressed a need to combat DUI, legislators aren't entirely united on how to address the problem. Jent credits Montana's troubling statistics to an ingrained risk-taking culture—the same attitude, he says, that drivers display when they refuse to wear seatbelts. Hansen agrees, pointing to alcohol's prominence in pop culture and Super Bowl commercials as having a profound impact on youth. Shockley, on the other hand, doesn't know if he buys the culture excuse. Even if the argument did have validity, he says, it's not the Legislature's responsibility to alter the citizen mindset.

"We're not about culture, we're about the law," Shockley says. "We reflect the culture, we don't change the culture."

•••

On Jan. 14, an off-duty Missoula County Sheriff's deputy spotted Shockley on Interstate 90 with an open can of red beer—a mixture of beer, clam juice and tomato juice. Shockley reportedly passed a field sobriety test, blowing a 0.03, but the open container citation was enough to induce Shockley to step down from his position as chairman of the Senate Judiciary Committee. He later described the incident as "embarrassing;" Shockley voted against the bill in the 2005 Legislature that established Montana's open container ban. Some legislators at Miller's have now taken to calling red beer a "Shockley."

The Montana Legislature's history with DUI is long and well documented, indicating that even elected officials aren't above the pervasive culture of alcohol abuse. Shockley is far from the first to get popped; former Kalispell Sen. Greg Barkus made headlines in August 2009 for his role in a drunken boating accident on Flathead Lake. Barkus, whose BAC registered nearly twice the legal limit of 0.08, crashed a speedboat into the rocks along the lake's shoreline after attending a party at a Lakeside restaurant. All five passengers, including U.S. Rep. Denny Rehberg, were injured. Rehberg staffer Dustin Frost remained in a coma at Kalispell Regional Medical Center for 10 days.

Two years prior to Barkus' storied accident, Sen. Scott Boggio, R-Red Lodge, was arrested for DUI in Helena in the midst of the 2007 legislative session. Boggio's BAC registered at 0.14 percent, and his passenger at the time—Rep. Elsie Arntzen, R-Billings—was a member of the Yellowstone County DUI Task Force. They'd borrowed the vehicle from a third legislator, Rep. Harry Klock, R-Harlowton.

Perhaps the most troubling DUI tragedy to come out of the Legislature in the past decade occurred in August 2001 when Shane Hedges, former policy director for Gov. Judy Martz, killed House Majority Leader Paul Sliter, R-Somers, in a late-night car crash outside Helena. Medical records from the Montana Department of Justice reveal Hedges had been driving with a BAC of 0.15 percent, and Sliter's BAC was posthumously recorded at 0.16 percent. Witness testimony later indicated the two had spent the evening drinking at Marysville House, a steak restaurant 25 miles from Helena.

Sliter's death generated a nationwide media storm unlike Montana's more recent Legislature-related DUI cases. Articles in The New York Times and The Denver Post linked Martz to a suspected cover-up, and Martz admitted months later that she had washed Hedges' bloody clothes when he arrived at the governor's residence immediately after the accident. She claimed she had no idea until days later that the clothes were evidence. Police reports even cite possible evidence tampering at the crime scene involving a number of beer cans and bottles.

Even Missoula's local government officials have something of a tarnished record. In late February 2010, local police arrested City Councilwoman Pam Walzer, a Democrat from Ward 2, for driving with a BAC of 0.08. Walzer's DUI came at the most inopportune time, as the council had only recently begun discussing stricter DUI laws including a fine for refusing a breathalyzer (Walzer voluntarily submitted to a breath test when pulled over). She refused to step down from her position, instead apologizing and vowing to continue her work for the city.

The incident goes to show just how pervasive the DUI problem in Montana has become.

click to enlarge Missoula County Justice of the Peace Karen Orzech estimates she’s seen 1,800 DUI cases in her courtroom during her 12-year career. - PHOTO BY CATHRINE L. WALTERS
  • Photo by Cathrine L. Walters
  • Missoula County Justice of the Peace Karen Orzech estimates she’s seen 1,800 DUI cases in her courtroom during her 12-year career.

"A lot of folks still think the roads are theirs and they can do anything they want," says Missoula County Sheriff Carl Ibsen. "'By God, this is our drinking state.' So I think we may have a bit more of a percentage-wise difficulty with it than other areas...I would speculate that well over half, maybe as much as three quarters, of what we do as cops has some relationship to drinking—obviously drinking and driving, a lot of our wrecks. It's pretty rare you go to problems at bars where they haven't been drinking, pretty rare you go to family beefs where they haven't been drinking."

Tragic DUI stories hit close to home in Missoula County—far away from the buzz of the session. Officials have long recognized the need for a harder approach to drunk driving. Spurred by personal experience, locals have dedicated themselves to a daily battle against alcohol abuse on our roads.

Ibsen, a 39-year veteran of law enforcement in Missoula, campaigned hard for sheriff last year on the premise of taking a stronger stand against DUI. A Montana arrest record is now tacked above his desk in the county courthouse, a personal reminder of why he's focused his office's efforts on drinking and driving. The man pictured is David James Bugni, a Butte resident arrested in September 2009 for causing a fatal car wreck on Interstate 90 while under the influence of alcohol. The woman Bugni later pleaded guilty to killing was Judy Wang, Ibsen's wife and an influential Missoula city prosecutor. The loss, Ibsen says, has made DUI enforcement a significantly more personal matter.

"Up until that time, I thought that I understood the feelings of the victims' families and the victims," Ibsen says. "All of a sudden we find we aren't immune and our families aren't immune, because it puts a real picture on it...It puts a more personal face on it, it really does."

Ibsen doesn't mask the fact that he feels Montana's laws are inadequate. Moreover, he's heard directly from felony DUI offenders that the current penalties don't do enough to prevent drunk drivers from developing a pattern of behavior. Members of the state's six-month Warm Springs Addictions Treatment and Change (WATCh) Program have told Ibsen that had they faced more stringent punishments on their first DUI, they might not have reached their third, fourth or fifth conviction. That's why Ibsen supports legislative attempts like Hansen's that seek to curb drunk driving early on; a binder on his windowsill contains copies of scores of bills from the session, complete with status notes he updates as often as possible. But the lengthier jail-times and alternative treatment options now being discussed aren't going to solve the problem on their own, Ibsen says.

"Somewhere along the line society has to figure out a way to collectively say, 'You as the drunk driver, you are a pariah,'" Ibsen says. "How many times when you were a teenager did you know friends who went out, got hammer drunk, got home and called you in the morning to say, 'God dang, I got so drunk last night. I don't even remember how I got home'? And everybody laughs and jokes about it because they made it home. We need society to get to a point where when your buddy calls you and says that, you say, 'You dirty, rotten SOB. How could you do that?' And basically shun them."

Partly to that end, Missoula County Justice of the Peace Karen Orzech has committed herself to holding DUI offenders responsible for their actions. She speaks of drunk driving as a side-effect of addiction, and as a result feels that only a sober mind can produce a turnaround in attitude. That doesn't come from forced sobriety over a few days, Orzech says, but rather from close legal supervision for a period of months.

"Ultimately, jail doesn't change behavior," Orzech says. "As a judge, generally when somebody goes to jail it's for a short time to make an impression or it's for a long time to protect the community. Jail isn't a nice place, and when people get out generally they're not better. How does jail treat an addiction? It keeps somebody from alcohol for seven days, and when they get out they're going to have the same pressure, the same no-job situation, all the same reasons they drink."

These days, Orzech jokes, she's known for her harshness in enforcing DUI penalties. And like others, she notes a professional turning point in her career that led to such a fierce stance against DUI. It's a story she's never shared before, she says, but one that illustrates how personal Montana's DUI culture can become for those charged with upholding the law.

"There's a moment," she says. "Many, many years ago, I had a young girl on her first DUI. She told me she was going to Florida for treatment, and I believed her. But she didn't go to Florida for treatment. She went across the state, and she got her second DUI, and she killed somebody. That's when it changed it for me, and that happened about 10 years ago. I said to myself, 'I have to do a better job as a judge. I have to make sure people are monitored. It's my responsibility to keep this community safe.'...That's why I do what I do."

Orzech succeeded last September in launching a separate DUI court in Missoula County. Judges across Montana already have a number of tools at their disposal, such as sweat-monitoring SCRAM bracelets or vehicle interlock devices, that allow for round-the-clock supervision. Orzech says she even goes so far as to correspond with DUI offenders she's seen in court in the past, making sure they're staying sober. But the specialized court allows her to keep closer tabs on the advancement of the offenders she sees, or "plant seeds" for a widespread cultural change, as she puts it. To date, the court has graduated four convicted DUI offenders with nine other members meeting regularly with court officials. Orzech hopes those graduates have managed to reach a turnaround point.

"We just had a graduate the other day, a young girl who's been in my court for years and really has an issue with alcohol," Orzech says. "She's been to treatment, she's been sober [for over a year] and she's moving up in her job. We had a chocolate cake with ice cream for her in court. All of us talked and cut the cake, talked about what progress everybody's making. She's on her own now, and we'll see."

click to enlarge Helena bars like Jorgenson’s become a hotbed of legislative after-hours activity during the session, with Republicans and Democrats alike seeking a break from knock-down drag-out debates. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Helena bars like Jorgenson’s become a hotbed of legislative after-hours activity during the session, with Republicans and Democrats alike seeking a break from knock-down drag-out debates.

In her 12-year career, Orzech estimates she's seen 1,800 DUI cases in court. But she does feel an attitude change is imminent for Montana. Whether that comes from her courtroom or from the Legislature's ongoing efforts to enact stricter policies, she doesn't feel she's in a position to say. Regardless of what happens in Helena, Orzech plans to continue the DUI fight as she sees fit.

"What I see the Legislature doing is just providing me with tools I can use to hold people accountable," Orzech says. "If they pass some laws that are good tools, I'll use them. If they pass some laws that are not so good tools, I won't use them. And if they pass laws that are unconstitutional, if it should come to my attention I'll declare them unconstitutional. That's my job as a judge. Whatever they do over there in Helena, they will do. Whatever I do here in Missoula to hold people accountable, I will do my best with what I have."

•••

The fact that some of the highest profile examples of alcohol abuse come from the Legislature's own membership serves to underscore the importance of a statewide change in attitude, whether or not individuals like Shockley agree there's a cultural component. But those taking their cracks at penalty enhancement admit it will take more than increasingly harsh laws to turn that attitude around.

"Unfortunately, a lot of the DUI bills are in some way after the fact," Hansen says. "They are punishments, they are a 'what do we do to people who won't change their own culture?' But I think the Legislature taking a real hard look at this issue will start a broader discussion on changing that culture."

Jent sees significant promise in strengthening treatment options. During the interim committee's review of the epidemic, he says, legislators found that fourth DUI offenders going through the WATCh Program weren't getting fifths, something he believes is a strong indicator of success in curbing repeat DUI behavior. The 24/7 sobriety program bill, carried by Rep. Steve Lavin, R-Kalispell, won popular support in the House in late January and now rests before the Senate Judiciary Committee.

The issue remains at the forefront of Blewett's mind as the clock ticks toward closing and the crowd at Miller's continues to indulge. Yes, the bar gets "substantially busier" during the session, he says. And some of Montana's legislative officials may be in an altered state of mind on this particular evening. But they're adults, and as such are able to make their own decisions on the basis of experience or responsibility. Each, as a legislator, understands the potential ramifications a legislature-linked alcohol charge will have during this particular session. The issue is now under such an extreme microscope that any misstep in judgment means damage not just to personal reputations but to political progress; Shockley recognized the fact after his open container ticket, and promptly forfeited his leadership position on the very Senate committee responsible for reviewing this session's DUI proposals.

It should come as no surprise, either, that political officials descend on joints like Miller's. Bars in Montana remain as much a public hall as county courthouses or city council chambers. They're home to the same politically charged discussions and issue-oriented debates. There's no problem with that, per se, as long as the dialogue continues and responsible choices are made—both at closing time and the conclusion of the session.

"It's the buzz that wins," says Jent, using an appropriate turn of phrase for the topic, "in what people think and feel."

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