Council rejects DUI ordinance that would fine for test refusals

For residents who believe they have little influence in the decisions of their elected officials, they should have been at the Libby City Council meeting Monday for a vote on a proposed ordinance.

The proposal, brought to city leaders by Police Chief Jim Smith through City Attorney Jim Reintsma, would have fined motorists suspected of driving under the influence who refuse to consent to either a breath test or giving a blood specimen. The tests would be used to determine blood-alcohol levels. A similar ordinance was passed by city councils in Darby and Missoula, with the Missoula standard surviving a legal challenge.

Before the 2-3 vote that failed passage of the ordinance, the council heard first from D.C. Orr, then Jennifer Nelson, Gerry Irish and Stan Potter, who voiced concerns and opposition to the proposed ordinance that would penalize motorists in city limits suspected of driving under the influence of an intoxicating substance by imposing a $500 fine for refusing to consent to the sampling. However, it was Nelson’s presentation that showed the proposed ordinance would have been a duplication of state statute that was most convincing.

Council members Peggy Williams and Brent Teske voted in favor of the ordinance, but Allen Olsen, Barb Desch and Council President Bill Bischoff voted against passage. Councilwoman Robin Benson, who was called away for a family emergency, was not present for the vote.

“I think Jennifer presented some good points. I’ve been struggling with this. Yes, she convinced me,” Bischoff said of his nay vote.

Similarly, Desch said it was Nelson’s opposition to the proposal that convinced her nay vote.

“I wasn’t convinced (the ordinance) was necessary,” Desch said. “I think it was a little overreaching. I think she presented some good points. Yes, I think she convinced me.”

Olsen said Nelson’s concerns represented a continuation of opposition to the proposed ordinance.

“Emily Patten and D.C. Orr said a lot of the same things during the hearing Thursday,” Olsen said. “I think there is widespread opposition to it.”

Olsen said he was surprised by the outcome, stating the vote may have been different had Councilwoman Benson been there.

“Who knows how Robin would have voted,” Olsen said. “I think this is only the second time that Bill and I have voted the same way on something controversial. The last time was on the payment of concrete for (Chuck) Riley (of Riley Construction) at the park. We both voted to pay him.”

Benson said had she attended the meeting, she probably would have voted in favor of the ordinance bringing a 3-3 vote.

“I was in favor of it,” Benson said. “Although, I didn’t hear what Jennifer Nelson had to say. Generally, I’m about making our lives safer, and if this would have made more people safe, I would have voted that way.”

If Benson had voted, the outcome is speculative. Still, Mayor Doug Roll would have had to cast the deciding vote.

“I’m not required to vote unless there is a tie,” Roll said. “So, I’m not going to speculate on what could have been. I don’t think there are any plans, at this time, by our Ordinance Committee to bring it back.”

Councilwoman Williams, who chairs the Ordinance Committee, concurred.

“As far as I’m concerned, it’s dead,” Williams said.

As Ordinance Committee Chairwoman, Williams said over time she could see the benefits of the proposal.

“We spent a lot of time on this,” Williams said. “We had four committee meetings, three council meetings and a public hearing. I began to see the benefits of this. It’s like it sort of grew on me.”

Councilman Teske — along with Williams — were the two yea votes. As Williams had familiarity with the ordinance with her chairwomanship, Teske has had some familiarity with handling DUIs. A former Libby patrolman, Teske said he felt the need for the law.

“Hey, I tried,” Teske told Chief Smith after the meeting. “I did all I could.”

While disappointed his initiative was not approved, Smith said he and his officers will carry on.

“It was something that would have given us another tool,” Smith said. “We’ll keep working with the (laws) we have.”

Both Orr and Nelson offered compelling reasons that council members should rethink or, at least, delay their vote.

Orr contended persons who attended a hearing last Thursday were dissuaded from speaking after what he said was “unprofessional” behavior made in his direction by Chief Smith.

“Two of us were able to get up and speak before your police chief got up and acted very unprofessionally,” Orr said. “The police chief was turning around and calling me names, and after he treated me that way, no one else in the room would comment. I don’t think you should move ahead with this tonight. I think you should have another hearing so those people who got intimidated by your police chief actually have a chance to voice their opinion on this.”

While Orr said the council should take more time before making a decision, Nelson said the ordinance was both an infringement on rights and a redundancy of state laws, citing specifically HB-106, SB-15 and SB-42.

“First, I see an issue with personal rights,” Nelson said. “The Montana Senate killed a similar bill in 2011, citing unconstitutionality. Stating it penalizes someone’s rights to refuse of what is, essentially, a search. The implied-consent law, which is the backbone for the mandatory six-month driver’s license suspension, applies to driving privileges only and not to personal assets. Darby and Missoula passed city ordinances similar to this one. They are the only two (cities) in the state that have passed, that I am aware of. They passed those in 2011, prior to the passage of Montana passing three laws in October 2011 to deter repeat offenders of DUI.  The Legislature passed three laws to address repeat (DUI) offenders. That is House Bill 106, which is the 24/7 program, which requires repeat offenders to undergo breathalyzer tests twice a day at their own expense. There was also Senate Bill 15, which is the aggravated DUI law, that enforces harsher penalties for higher blood-alcohol content readings. There is also Senate Bill 42, which allows law enforcement to obtain a search warrant to get a blood sample in certain cases. So, there are laws that are in place since these two other communities put their refusal fines into place. The state has taken action. Then, there is the matter of practicality. People will drive after being suspended and receive fines. Fines do not keep drivers off the road. The state has struggled with this, and they have proof that fines do not deter repeat DUI offenders.”

Then Nelson mentioned the cost of a legal challenge.

“If this is challenged, what will this cost the city,” Nelson said. “Currently, the state’s 24/7 law is being challenged. Civil cases can be very long and drawn out and very expensive. This is a very difficult problem that is very well left up to the state. Libby should reject this law as there are new state laws that are put into place that address repeat DUI offenders. Libby cannot afford the legal challenges that may come as a result of upholding this ordinance if it is passed, and passage only serves to create revenue and reduce our personal freedoms.”