On Nov. 8 last year, Thomas White failed to dim his brights as he drove on Highway 2 near Coram, catching the attention of a deputy from the Flathead County Sheriff’s Office.
According to court records, the deputy pulled him over and, after smelling alcohol, administered a preliminary breath test. The results showed a blood alcohol content of .297, nearly four times the legal driving limit of .08, despite White’s claims that he had only had four beers.
White’s is a familiar name with prosecutors at the Flathead County Attorney’s Office; if he is convicted of this latest offense it will be his 13th DUI or DUI per se conviction since 1987.
With multiple DUI cases a persistent problem in Montana, there has been a push by local governments to find more effective ways to reduce the number of repeat offenders. At the state level, the attorney general’s office launched a new program to monitor repeat offenders more closely and many predict that the Legislature will reconsider DUI penalties. At a more local level, the Missoula and Darby city councils have taken steps to make refusing a breath or blood test a criminal offense, punishable by fines.
Bullock recently announced a new program in Lewis and Clark County that would compel anyone arrested for a second or subsequent DUI to take a breath test twice a day, every day, as part of the “24/7 Sobriety Project.”
“What we are doing in response to drunk driving is not working,” Bullock wrote in a March editorial. “Although judges in Montana frequently require repeat DUI offenders to abstain from using alcohol as a condition of bond, we have no effective program in place to ensure compliance.”
If the offender does not show up to take the test or fails it, their bond is revoked and they are sent to jail to await a judge.
Whitefish Police Chief Bill Dial said Whitefish has already been doing this for repeat DUI offenders and repeat underage drinkers for six months, and it has been a success so far.
“They’ll behave as long as they are monitored,” Dial said.
Flathead County Attorney Ed Corrigan said he agrees with Bullock’s stance that the current system for repeat offenders is not working. But he also noted that he is wary that the efforts in Missoula and Darby will be effective in preventing repeat offenders.
The city councils there are considering ordinances to penalize drivers who refuse to submit a blood or breath tests with a misdemeanor offense and a fine. If the ordinance passes, refusal in Missoula would cost $300. In Darby, it would cost $1,000.
Corrigan said these potential financial penalties would probably have little effect on repeat offenders, because they usually disregard the current penalty for refusal, which is losing their license. Like White, most drive with suspended licenses, Corrigan said.
“Three-hundred dollars isn’t going to deter somebody who isn’t responsible to begin with,” Corrigan said. “Most repeat offenders aren’t responsible when it comes to alcohol.”
Kalispell City Attorney Charles Harball said he has been watching the situation unfold with curiosity. He said a few Kalispell City Council members have approached him with questions about the ordinance, but, for now, Harball will watch to see how Missoula handles it.
There is a constitutional quandary at the center of the issue, he said.
“We all have a right to not give evidence against ourselves,” Harball said. “When you take the concept that says you have to provide something of yourself and if you don’t, it’s a crime, that’s probably pushing the envelope.”
“I think it’s great – the concept of doing it – I just don’t think it will pass Supreme Court muster,” he added.
Neither Corrigan nor Harball envision a similar ordinance coming to Kalispell nor the county any time soon. To begin with, the county can’t enact criminal law on its own, Corrigan said. If there were a countywide change, it would have to come from the Legislature.
“I think it’s something the state Legislature is going to take a long look at,” Corrigan said.
If the ordinance passes in Missoula, Harball predicts it will inevitably be followed by a legal challenge. If it can survive and succeed, it may be worth considering for Kalispell, he said.
Stephanie Breck, prosecutor for the city of Columbia Falls, said that city is not currently considering or investigating an ordinance similar to Missoula’s or Darby’s, but that doesn’t mean it couldn’t happen in the future.
Dial said he supported the idea for Whitefish, but he thought it might be something the Legislature would have to handle. He also supports the idea of more alcohol-intake monitors for offenders, and harsher penalties for DUI offenses.
“Bottom line is, people are not getting the message about drunk driving,” Dial said.
In 2008, more than 1,300 Montana drivers refused to take a blood or breath test after they were pulled over. Current state law holds that this refusal can result in license seizure and possible suspension.
Both Corrigan and Harball say they believe most first-time offenders get the message when they are prosecuted. It can be embarrassing and expensive to get a DUI, both personally and professionally, they said.
A first DUI means at least 24 hours to six months in jail and a fine of at least $300 to $1,000.
“The stigma is a pretty significant knock,” Corrigan said. “It’s embarrassing, and causes all kinds of consternation with family and employers.”
But Harball questioned the current system’s effectiveness for treating repeat offenders. He asserted that offenders should be mandatorily evaluated for chemical dependency problems after a second or third offense and should have to comply with the evaluation’s conclusions.
Another problem Harball sees with the system in place is numerous plea bargains offered to offenders who refused to submit to blood or breath tests. Harball said there has been a pattern of offenders refusing the test, getting their license suspended, then pleading guilty to a lesser charge to get their license back.
“It makes things quick and easy, probably too quick and easy,” Harball said. “Really, the handle needs to be gotten on the plea bargains. If a person loses their license, let it be.”