State appeals Wheelis' constitutionality ruling of DUI program

HELENA — The state is appealing a ruling by a Northwestern Montana judge who said fees charged for the state’s 24/7 Sobriety Program amount to pretrial punishment.

The Attorney General’s office notes the Feb. 5 ruling by District Judge James Wheelis of Libby applies only in Lincoln County.

Under the 24/7 program, a judge can order people charged with a second or subsequent drunken driving offense to pay for twice-daily breath tests or an alcohol monitoring bracelet as a condition of their pretrial release. A bill creating the program was signed into law in May 2011 with the goal of reducing the number of people who drive under the influence of alcohol or dangerous drugs.

The bill allows county sheriffs to choose whether to participate. Currently, 22 counties are running the program and more have attended training to launch their own programs, the Justice Department said.

Lincoln County Sheriff Roby Bowe defended the program as an effective tool against drunken drivers.

“It is a great program, and I respect Judge Wheelis’ decision,” Bowe said. “Some of those people have said how the program has helped them stay sober. They’re grateful.”

The Lincoln County program has been solvent in recently months. However, it didn’t start off that way.

Recently, Amy Butler, the now-fired administrator for the Lincoln County 24/7 Program, was charged with stealing from the fund. Butler pleaded guilty to taking more than $12,000 from the fund.

An internal investigation  of the Lincoln County program ensued, and it was determined by Bowe and Undersheriff Brent Faulkner that money had not been properly deposited with the Lincoln County Treasurer’s Office.

At that point, the Sheriff’s Department sought a special investigation by Assistant Attorney General Kenneth Varns. Varns’ investigation revealed funds were missing  from the account.

An audit of the newly formed program found accounts, after Butler had been removed as its administrator, was found to “be 100 percent,” Varns wrote in an affidavit in the case.

Despite the problems with the program in Lincoln County, it has its supporters, and none more ardent than Attorney General Tim Fox.

“Combatting DUI is a priority for Attorney General Fox, and the 24/7 Sobriety Program is an effective tool in curtailing not only repeat DUI offenses but other alcohol-related crimes as well,” said John Barnes, a spokesman for Fox.

The judge’s decision came in the case of Robert Spady, who had a 2006 DUI conviction and was arrested for DUI in April 2013. He participated in the program for 113 days and paid $452 in fees. Spady missed or was late for three breath tests and was charged with contempt of court in each case. He appealed his Justice Court contempt convictions, arguing the 24/7 law was unconstitutional.

Wheelis agreed and dismissed the contempt charges.

In his ruling, Wheelis said the fees that defendants must pay for the sobriety testing are “indeterminate” — they can last for a few days or for months. He said they are not reimbursable if the defendant is acquitted and they cannot be used to offset a potential fine, so they therefore amount to “pretrial punishment in violation of the defendants’ due process rights.”

The law is unconstitutionally vague in defining a second drunk driving offense and therefore could lead to selected reinforcement, Wheelis wrote. He also said the Legislature did not define how the Attorney General could set the fees or determine if a defendant faces a hardship in paying them.

(The Western News Editor, Alan Lewis Gerstenecker, contributed to this report.)