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Gazette opinion: Lawmakers should lead by example to curb DUI culture

Last year more than four out of every 10 DUI suspects arrested
by Billings police officers refused to take a breath test. That was
246 refusals out of 560 suspects.

Among the 314 suspects actually tested, the average blood
alcohol concentration was 0.204 percent — two and a half times the
level at which a driver is considered intoxicated under the laws of
Montana and every other state.

Knowing the blood alcohol concentration is important because
drivers with very high BAC are more likely to be addicted to
alcohol and more likely to drive drunk again.

That’s why Montana law should recognize BAC levels above 0.2
percent as a factor that warrants additional sanctions and
supervision to deter repeat offenses.

Refusing breath test

Sgt. Scott Conrad, who has supervised BPD’s Intoxilyzer program
for three years, reports that the average BAC has held steady while
the percentage of refusals has increased.

County attorneys who prosecute drunken drivers have long
complained that repeat offenders are most likely to refuse the test
because they know that objective, scientific information will
assist in convicting them if they are guilty.

In testimony before House and Senate judiciary committees last
week, Yellowstone County Attorney Scott Twito supported legislation
to create the offense of misdemeanor “aggravated DUI,” which would
allow courts to supervise misdemeanor DUI offenders for up to three
years if they had a blood alcohol level of 0.2 percent or higher
when arrested or if they refused a breath test or if they had a
previous DUI conviction in the past three years.

Current law allows courts only six months of supervision for
first offenses. Six months isn’t enough time for a drunken driver
to complete treatment for alcoholism and change his behavior for
the long term.

Aggravated DUI

The aggravated-DUI bill, which was supported by the Interim Law
and Justice Committee, would help the justice system deal more
effectively with the root cause of DUI before a person is arrested
for a second or subsequent offense. However, to use the proposed
aggravated-DUI law most effectively, breath or blood samples are
needed. Proposed legislation, such as Senate Bill 42, that would
cut down on test refusals and make clear the state’s authority to
lawfully obtain these tests from drivers need to be part of the
2011 DUI reforms. However, it isn’t necessary to create a new
system for issuing DUI search warrants as proposed in Senate Bill
40.

The legislative staff has estimated that Senate Bill 15, the
proposed aggravated DUI legislation, would be expensive because the
fiscal note assumes that more DUI cases would go to trial and
state-paid defense attorneys would spend more time on them.

SB15 sponsor Larry Jent, D-Bozeman, who is an attorney, as well
as Twito, dispute the cost assumption. We agree that the fiscal
note fails to account for a reduction in DUI cases that can be
expected because fewer first-time offenders would have a second,
third or subsequent DUI offenses.

Also, with SB15, the court can retain jurisdiction longer, which
opens up more options for treatment and rehabilitation, such as
participation in drug court programs. More offenders may choose to
admit their offense and get into treatment rather than going to
trial and facing a jail term if convicted.

As Attorney General Steve Bullock told the judiciary committees,
“We’re not doing enough to address the problem upfront.”

Lawmakers’ offenses

Bullock and Twito are leading Montanans to change historic
habits of drinking and driving. The need for culture change was
illustrated in two court stories last week. First, Sen. Jim
Shockley, R-Victor, pleaded guilty to driving with an open
container of alcohol on Jan. 14. He had voted against the
open-container law that he violated. Shockley resigned as chairman
of the Senate Judiciary Committee the day after his open-container
violation became public knowledge. However, he is remains committee
vice chairman and is sponsoring several DUI-related bills.

The same day, former state Sen. Greg Barkus, R-Kalispell, was
sentenced for felony offenses related to being intoxicated while
operating a boat on Flathead Lake. U.S. Rep. Denny Rehberg and two
of his aides were seriously injured when that boat crashed and ran
aground at night.

The Shockley and Barkus cases show that the difficulty in
curbing Montana’s DUI problem isn’t just on our roads; it’s in our
state Capitol.

With so many terrible alcohol-related crashes — including the
deaths of two Montana Highway Patrol troopers in the past two years
— all of our legislators should be spurred to action this
session.

Over the years, more Montana lawmakers than we care to count
have been cited for DUI. We call on the 2011 lawmakers to uphold a
higher standard. Toughen up our DUI laws and abide by them
yourselves.

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