Attorney asks visiting judge to uphold 24/7 ruling

BILLINGS (AP) — A visiting Yellowstone County judge said he will not apply a northwestern Montana judge's ruling last week that the state's 24/7 Sobriety Program for repeat drunken-driving offenders is unconstitutional.

District Judge James Spaulding on Thursday said it would be more appropriate for the presiding judge, District Judge Mary Jane Knisely, to make any ruling on the 24/7 program.

Attorney Jock B. West of Billings had asked Spaulding to uphold the Feb. 5 ruling in Lincoln County that the fees charged in the program are unconstitutional because they amount to pretrial punishment.

West's client was in court on allegations that he violated the terms of his pre-trial release, which include participating in the 24/7 program.

The state is appealing the Feb. 5 ruling by District Judge James Wheelis of Libby, which the attorney general's office says 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. The law took effect in 2011.

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.

In his ruling, Wheelis said the fees that defendants must pay for the sobriety testing 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."

Gov. Steve Bullock, who led the drive to institute the program when he was attorney general, defended it Friday. He said judges have the authority to impose or waive fees.

"I think Judge Wheelis is wrong. I think that Montanans are tired of reading in the paper about the fifth and sixth DUI (offenses)," Bullock said.