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.

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"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."

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