By Gary Robson
NOTE: Gary has written a follow-up letter to the City Council.
Montana has a drunk-driving problem. Or, should I say, "had" a drunk-driving problem. Because it appears that our City Council has fixed it with the ordinance passed in October. The "Purpose and Intent" paragraph of Ordinance 887 says:
"Any person operating or in actual physical control of a motor vehicle while under the influence of alcohol and/or drugs creates a significant risk to public safety, health and general welfare. To help secure public safety, health, and general welfare, the City of Red Lodge adopts this chapter in an effort to deter persons from engaging in this dangerous activity."
Excellent! There's not a word in there that I can argue with. Did they accomplish this feat by toughening up laws on DUI repeat offenders? No. How about setting a blood alcohol content (BAC) limit above which offenders automatically lose their license for a year? Nope. Putting some City money into drug and alcohol education for teenagers? Afraid not. Making operation of a motor vehicle under the influence of meth a felony? Not that either. Lobbying the State of Montana to do some of these things, since the City can't? Nope.
Well, then, what did they do? They added this new code section:
"6-1-11B: It is unlawful and constitutes a misdemeanor offense for any person operating or in actual physical control of a motor vehicle suspected of doing so while under the influence of alcohol and/or drugs to refuse to submit to one or more breath or blood alcohol and/or drug tests to detect alcohol and/or drugs requested and designated by any peace officer as defined by Montana State Law."
Wow. Now that's a deterrent! But does it have any teeth? I mean, what really happens if you're standing next to your car with the keys in your hand, a passing peace officer suspects you're under the influence, and you refuse to let him draw your blood? Let's move forward to section 6-1-11C for the answer:
"A person convicted under this chapter shall be subject to a fine of Five Hundred Dollars ($500.00), no portion of which may be suspended, waived or deferred by the court."
Hmmm. I may have an issue or two with the way they fixed this problem after all.
In a conversation the day the ordinance passed, someone raised the 8th Amendment. It's short and sweet. It states that, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Personally, I doubt you could make a Constitutional case out of $500 being too much to pay for refusing a blood test, but the clause in 6-1-11C that removes all discretion from the court makes it pretty clear this isn't about drunk driving; it's about money.
Yes, money. I think this ordinance is a plain and simple cash grab for the City of Red Lodge.
Despite my sarcasm earlier in this editorial, I do believe that driving under the influence of drugs and alcohol is a Bad Thing. I'm pretty darned careful not to jump behind the wheel if I've over-imbibed, and I rarely drink too much anyway (despite writing a beer column and having a picture of myself sipping a beer in this column banner). The majority of local law enforcement folks I've met are good people, genuinely concerned about doing their jobs. So what's my problem?
This ordinance means that any officer who doesn't like me--or you--can pull us over without probable cause, demand that we go through a battery of drug and alcohol tests, and fine us $500 if we refuse. Look how the ordinance is written:A police officer could demand that you submit to a Breathalyzer, then a blood test, then another Breathalyzer, then a drug test, and so on. As soon as you refuse one, *BAM*, $500 fine. If a deputy pulls you over and gives you a Breathalyzer test, and then a city cop pulls you over two blocks later, you must submit to a second test or face the fine.
If Ordinance 887 was intended to curb drunk driving, it would increase the penalty for people convicted of drunk driving. It would fine people who were formally charged with DUI. It would allow you to choose whether you'd rather blow in a tube or get pricked, and limit law enforcement officers to only performing one test.
But it doesn't. The ordinance is written to make it as easy as possible for peace officers to issue the fine, and impossible for judges to override them. It's a bad law that doesn't do what it purports to do and leaves the doors open for significant abuse.
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