Pretrial Sobriety Testing Upheld in Montana

     (CN) – Before Montana can make accused drunken drivers awaiting trial in Montana take twice-daily breath tests, it must make an individualized assessment, the state Supreme Court ruled.
     Enacted by the Montana Legislature in 2011, the state’s 24/7 Sobriety Program Act created conditions for the release of citizens accused of their “second or subsequent” drunken driving offense.
     Such citizens must take breath tests for alcohol twice a day, and pay a fee of $2 per test. Failure to comply can result in a contempt charge.
     Robert Spady challenged the law as unconstitutional while battling DUI charges in 2013 after prior DUI conviction in 2006.
     In Spady’s 113 days of participation in the program, he missed three breath tests and was charged with three counts of criminal contempt.
     Spady challenged the program’s $2 per test fee under the Eighth Amendment’s protections against excessive bail, and he claimed that the scheme’s economic impact on poor defendants violates the equal protection clause of the 14th Amendment.
     In addition to claiming that the program also eliminates a defendant’s due process right of innocent until proven guilty, Spady also contended that the twice-daily testing amounts to an invasion of privacy, as well as an illegal search.
     After the Lincoln County Justice Court refused to dismiss the contempt charges, Spady preserved his right to appeal but struck a plea deal in which he copped to contempt charges in exchange for the dismissal of the DUI and careless-driving charges.
     Spady fared better in his appeal to the 19th Judicial District Court, which found that unconstitutionally vague language in the law “leads to arbitrary and prejudicial results.”
     Dismissing the contempt charges against Spady, the court called the 24/7 Sobriety Program a pretrial punishment that violates due process rights.
     The Montana Supreme Court mostly sided with the state on July 30, however.
     Requiring accused, buy not yet convicted, repeat DUI offenders to submit to daily breath tests, and pay the associated fees, does not violate their due process rights or subject them to pretrial punishment, according to the ruling.
     “We conclude that the privacy interests implicated by the breath tests are minimal and the State has an important governmental interest in preventing fatalities on its public roads,” Justice Mike McGrath wrote for the seven-person court. “Requiring the state to point to specific facts giving rise to reasonable suspicion before testing individuals accused of repeat DUI offenses would significantly hinder the intended purpose of the program.”
     As for the fees, McGrath said they “do not have a punitive effect on pretrial criminal defendants.”
     “The fee is similar to other fees imposed at the pretrial phase, whereby the defendant forfeits some money for the privilege of release,” the 22-page opinion states. “Additionally, the fee is associated entirely with the cost of the testing program, not with traditional notions of punishment such as restitution or retribution. Even with potential criminal sanctions, the fees themselves are not punitive; both this court and the United States Supreme Court have held that a law may still be considered non-punitive even if enforced by criminal sanctions.”
     Citing the noble goal of cracking down on drunken driving, the court also called the program “squarely within the state’s power to protect the health and safety of its citizens.”
     The sole blow to the state came in the form of a requirement that Montana courts conduct individualized assessments before ordering participation as a condition of bond.
     “Because Spady’s contempt charges were based on the imposition of the 24/7 Sobriety Program without an individualized assessment, we affirm the District Court’s decision to remand the case to the Justice Court with instructions to dismiss the contempt charges,” the July 30 ruling concludes.
     The last finding removes the need for the court to assess the law for issues of vagueness, it found.

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