Montana 24/7 Sobriety Program
The 24/7 Sobriety Program was authorized when the Montana legislature passed H.B. 106 (“The 24/7 Sobriety Act”), which went into effect on October 1, 2011. The law establishes a statewide program housed in the Montana Department of Justice and administered by the attorney general to implement twice-daily alcohol-testing programs at the county level. The law provides for alcohol testing from the time of arrest until completion of the sentence for those convicted or charged with a second or subsequent offense of DUI or driving with excessive alcohol concentration. Before passage of the legislation, some sporadic local attempts had been undertaken to conduct alcohol testing of offenders who had committed alcohol-related offenses. The program established under H.B. 106 represents the first organized attempt in Montana to enforce sobriety among repeat DUI offenders. The program adopts the 24/7 model used in South Dakota, and officials from South Dakota have helped introduce the program in Montana through trainings for law enforcement agencies.
The 24/7 Sobriety Program is based on two important assumptions. The first is that any person who has a second DUI within a 5-year period is not dealing effectively with his or her drinking and driving and potentially has an alcohol abuse problem. The objective was to develop a program that allows a person to address the issue with drinking and driving while maintaining the ability to drive, stay employed, and be active in the community. Program officials note that experience has shown that suspending the driver’s license of an offender is not effective and is largely impractical, especially in a large, rural State such as Montana. The second assumption is that local control over the program is important. The law provides for local sheriffs to decide whether to have a program and how to run it. The law also provides for judicial discretion in sentencing. This was deemed important because many Montanans who are involved in the criminal justice system (offenders, law enforcement, and judges) likely have had prior contact and know each other personally. Thus, there is a feeling that judges are in a good position to assess the appropriate sanctions or conditions of bond or probation for different offenders. Montana’s 24/7 Sobriety Program is not part of an intensive supervision program but is a stand-alone program of alcohol testing to enforce sobriety.
Under the State’s DUI law, every offender receives an alcohol assessment. Depending on results of the assessment, a first-time offender may be required to complete a chemical dependency education course (or occasionally treatment). For all second and subsequent offenses, participation in a chemical dependency education program, a treatment program, or both is required. Because of this requirement in DUI sanctions, all (or nearly all) repeat offenders who are participating in the 24/7 program after their cases have been adjudicated also have treatment included in their post-conviction orders, not as part of the 24/7 program.
If a county sheriff chooses to participate in the program, the MT DOJ assists in creating and administering the program. Specifically, under H.B.106 the attorney general is charged with adopting rules to:
Since initial discussions with officials in South Dakota that served as the impetus for similar efforts in Montana, the Montana attorney general’s office has been actively involved in fostering the program even before passage of H.B. 106. Initially, the attorney general’s office worked to identify a county for a pilot program to see if data could be obtained to show that a program could be conducted with existing staff and other resources. This was seen as important as the legislature had been unlikely to pass bills with large fiscal notes attached to them, especially in recent years. Following the pilot program and drafting of the legislation that became law, the attorney general’s office put together administrative rules, worked with major vendors to develop uniform contracts for counties regardless of size, and traveled around the State to conduct education and training events. No funding was provided from the attorney general’s office or the legislature to communities for program start-up costs, although some counties may have received support from local DUI task forces funded by drivers’ reinstatement fees.
County sheriffs decide whether their counties will operate 24/7 programs. The sheriffs also decide where and when testing will occur and who can conduct the testing. Overall, the concept has been positively received by sheriffs across the State as a tool for ensuring public safety. The primary reasons for lack of adoption in counties not currently operating a program include not having connected yet with the attorney general’s office (particularly counties with small sheriff’s office staffs and large land areas where scheduling training has not occurred yet but will in the future) and, for some counties with few DUI offenses per year, a concern that participation would not be practical.
The legislation authorizing a statewide 24/7 program was implemented relatively recently; therefore, the program is in its infancy. As of January 2013, the program has been operating for just over 2 years in Lewis and Clark County, half of that as a pilot project, which then transitioned into a regular program under the new State law. Of Montana’s 56 counties, 22 are currently operating programs and 17 counties have completed training and are in the early stages of implementation; most of the remaining counties are preparing to implement programs in the near future.
Statewide estimates are that use of the 24/7 program for offenders who meet the eligibility criteria is high—often in the range of 90 to 100% of offenders. Lower rates of participation in a 24/7 program are usually reported by counties that are early in the process of program implementation where not all judges may be aware of the programs and/or not all prosecutors know to request them. This suggests that participation may partially be a communication/education issue.
Program participation, particularly on the post-conviction side, is related to whether the DUI is a misdemeanor (first to third offense) or a felony (fourth or higher offense) and which court processes the offender. One prosecutor who has worked in both a city and county attorney’s office reports that 24/7 is used regularly as a condition of bond and as a condition for suspended sentences (all but the mandatory minimum) for all second and third DUI offenses. In felony cases, however, participation in court-ordered 24/7 may occur on the pre-trial side but is rare on the post-conviction side, partly because felony offenders are typically removed from the community shortly after conviction to participate in treatment or alcohol diversion programs. Thus, to date the 24/7 program has been used much less often as a court-ordered requirement of sentence with felony offenders. Felony cases are initially processed in the courts of limited jurisdiction (city, municipal, and justice courts) for arraignment and bond, but then are transferred to State district courts, where district court judges preside. Information from parole/probation officers who supervise felony cases post-conviction, however, indicates that making 24/7 participation a requirement after treatment appears to be increasingly a part of judges’ orders for probation. The use of 24/7 post-conviction also appears to differ somewhat based on which court has jurisdiction over the DUI offense. Offenders arrested by city police are processed in municipal court where 24/7 is frequently used as part of sentence. Offenders driving outside city limits and arrested by sheriff’s deputies or troopers from the Montana Highway Patrol are processed in justice court where use of 24/7 as part of sentencing is not as common.
Currently, the law applies to repeat DUI offenders. The 24/7 program is also routinely applied by judges who use it as mandatory for those charged with or convicted of aggravated DUI, which includes first offenders with BACs at arrest of >.16 or driving on a suspended license because of a prior breath-test refusal. (Some judges will order once a day alcohol testing on the first offense of aggravated DUI.) Judges have substantial judicial discretion in setting conditions of bond to ensure public safety and that an offender appears in court for trial. Thus, some courts in Montana have further broadened the application of alcohol monitoring to offenses beyond DUI, such as domestic violence and vehicular battery when alcohol and/or drugs were involved in the underlying offense. (Some officials considered these instances of applying twice-daily monitoring to non-DUI offenders and first-time DUI offenders to be technically outside of the State’s 24/7 program and did not include such offenders as program participants, whereas other officials included all offenders in the count of participants.) Officials anticipate that, as more counties and more judges use the program, it will increasingly be applied beyond DUI to offenders who have other problems related to substance abuse.
Offenders sentenced to the program are required to report for BAC testing twice a day, typically from 7 to 9 a.m. and from 7 to 9 p.m. The exact times and places for alcohol testing are at the discretion of the local sheriff; however, the legislation does designate that there be at least one testing location in a participating county and that the testing should occur at approximately 12-hour intervals. Most sheriffs have located the testing program in their county’s jail. Lewis and Clark County (which includes the State’s capital of Helena) uses two testing locations: (a) the Lewis and Clark County Detention Center and (b) the Helena Pre-Release Center. Flathead County spans about 100 miles and does not have a centralized population area; because of its geography, there are four separate testing locations.
Alcohol testing is conducted primarily using PBTs; however, some offenders use TAM. Many program officials believe that it is important for offenders to appear in person twice a day at a central facility for alcohol monitoring. Thus, although judges ultimately have discretion in setting conditions of bond and probation, there has been a concerted effort in Montana to use in-person testing and reserve TAM assignment for those offenders for whom geographic issues represent an impediment to in-person testing. H.B. 106 allows that after the mandatory or “hard” driver’s license suspension period has elapsed (45 days for a second DUI; 90 days for a third or subsequent offense), an offender who has been court-ordered to the 24/7 Sobriety Program may be granted a restricted probationary license upon successful completion of a court-approved chemical dependency treatment program and proof of insurance. Data from Lewis and Clark and Yellowstone counties indicate that among offenders who report to a BAC testing site, about 40% drive themselves, 33 to 50% rely on a family member or friend to drive them, and 4 to 24% walk or ride a bike.
The counties across the State with 24/7 programs use a variety of staff to conduct the BAC testing. In Lewis and Clark County, detention officers working at the jail serve as testers, and private sector employees conduct the testing at the Helena Pre-Release Center. Other counties are also using dispatchers, sworn deputies, and program administrators.
Failure of the BAC test occurs when any amount of alcohol is detected (BAC > .00). The penalty for a positive BAC reading is that bond (or suspended sentence for those on probation) is immediately revoked, new criminal charges may be laid, and the individual is taken directly to jail. A judge then decides how long the offender must remain locked up (anywhere from a few hours to several weeks) and whether to raise the bond amount or reinstate the remaining jail sentence. Failure to show up for a BAC test results in the issuance of an arrest warrant and then the dispatching of a law enforcement officer to bring in the offender. The current no-show rate statewide is about 2% of total tests required.
One State-level official indicated that in Yellowstone County, which has been operating a 24/7 program since October of 2011, there have been two legal challenges regarding the constitutionality of the program. One challenge came up in municipal court and the other in the justice court. In both cases, the constitutional challenges were based on the theory that the 24/7 program amounted to an unreasonable search and seizure. In both cases, the courts upheld the constitutionality of the program.
There is currently no drug testing component of the 24/7 Sobriety Program in Montana.
Data compiled across the State by the attorney general’s office indicate that:
Because the program has been operating for just over 2 years in the pilot county and less than 1 year in most of the remaining participating counties, no program evaluation data exist on outcomes. However, reported success rates of BAC tests passed have been quite high. For nearly 1 year since the law was implemented (October 1, 2011, through September 22, 2012), 112,282 BAC tests were administered statewide as part of the program. Of these, 111,900 (99.7%) were passed and 382 (0.3%) were failed. When the number of no-shows for testing is factored in, the reported success rate is 97.5%. During the one-year pilot test in Lewis and Clark County, the rate of BAC-negative tests was 99.0%.
Despite its recent implementation, the 24/7 program in Montana has been credited with several improvements in the system. First, the program has brought greater attention to the issue of problem drinkers. Not only has there been more widespread awareness among the public, but there also has been a cultural shift among law enforcement away from the model of putting people in jail to solve a problem to a new focus on keeping offenders in the community by setting up conditions that promote the desired change in behavior. The cultural shift in law enforcement may have paved the way for the introduction of the 24/7 program rather than having resulted from its implementation. Regardless, the program’s acceptance and expansion through strong bipartisan support in the State legislature and among many of the State’s law enforcement agencies has further reinforced this approach to dealing with impaired drivers. Second, the program holds offenders accountable for their actions and provides a smooth and efficient mechanism for ensuring that they are adhering to one of the most common requirements of DUI offenders’ release from jail—staying sober. This forced sobriety not only protects the public, but it also benefits offenders and their families by allowing them to keep their jobs and stay in the community while they await trial or after they have been convicted of their second or subsequent DUI offense. While allowing offenders to maintain a normal life, the twice-daily testing provides a constant reminder about drinking-driving issues and the consequences of offenders’ actions. Anecdotal reports from some offenders are that participating in the program caused them to stop drinking altogether or stop drinking excessively—some offenders even report benefits in other areas of their life, such as not gambling. Some offenders report that the inconvenience of reporting twice daily for testing, and the resulting desire to avoid the program in the future, has been sufficient incentive to ensure that they do not drink and drive. Such reports coupled with the low violation rates create a sense that behavioral change is occurring. Third, the program is perceived as having cost savings ($4 per day for breath testing versus $65 per day for jail) and as being self-funded (although little cost data are currently available). Overall, the program is seen as succeeding in its two main goals: (a) reduce the population of inmates and (b) reduce the number of impaired drivers on the road.
Offenders who report for twice-daily breath tests pay $2 per test or $4 per day. Those using TAM pay $8 to $10 per day plus a $50 installation fee. Data on annual or total costs to offenders are not readily available and depend on how long offenders must be monitored. As noted earlier, some offenders may be monitored for periods as short as 3 weeks, whereas other offenders may be on the program for a year or more. The most common lengths of program participation are 60 days (which would cost an offender $240 for twice-daily breath testing) and about 6 months (which would translate to $720 for twice-daily breath testing). There are no provisions for indigent offenders. The average BAC of a DUI offender is .17 g/dL. Officials believe that the amount of drinking required to achieve that level of intoxication regularly would cost offenders significantly more than $4 per day, which is the daily cost of testing via a PBT.
Costs to jurisdictions of operating the program are harder to determine. Although most counties’ officials report the costs for PBT mouthpieces and rent (if necessary to lease a location for a testing facility), they do not appear to have firm estimates to account for the staff’s time to conduct testing. As a result, most counties’ officials report that costs were “pretty minimal” as current jail or sheriff’s department staff were doing the testing. Because those officers would be on the job anyway, officials do not perceive any additional cost associated with testing process.
Part of the annual costs to jurisdictions is the difference in costs of incarceration pre-and post-program implementation. In the case of Montana, all DUI offenders have to serve a mandatory minimum of jail time depending on which offense they are currently facing (1 day for first offense, 7 days for second offense, 30 days for third offense). Thus, the overall number or proportion of offenders who serve some amount of jail time before and after 24/7 remains unchanged. Whether the amount of time in jail has changed since program implementation is hard to say. An official with the attorney general’s office indicated that the number of days being served is probably less since the program began because offenders are posting bond and being released from jail sooner, both on the pre-trial and post-conviction sides. However, a county attorney indicated that the 24/7 program does not really get people out of jail sooner on the pre-trial side because even without the program most offenders would be released on bond while awaiting trial. It is also difficult to determine how program violations have affected the number of days of incarceration. Some officials noted that before the program, there was no strict alcohol monitoring, and thus revocations (of bond, of suspended sentences) were not as frequent. Others noted, however, that although a substantial number of offenders may fail at least one breath test, the sense is that judges might put an offender in jail for a relatively short time (i.e., a day or two) and then back on the 24/7 program rather than sending offenders back to jail for the remainder of the pre-trial period or the suspended sentence. Data on total annual days of incarceration for 24/7 violations were only available for the pilot county, Lewis and Clark. The numbers suggest that, at least initially, judges may be letting offenders who violate program requirements sit in jail longer than a few days. In 2011, there were 54 arrests for program violations and 518 days served in jail (about 9.6 days on average), and in 2012 (through September 13, 2012), there were 48 arrests and 241 days of jail time served (about 5.0 days on average).
Another reason that the 24/7 program may be reducing jail costs relates to coverage of medical costs. In the State, when offenders are incarcerated, the county pays the costs of all their prescription medications and hospital visits. Currently, at least six counties have reported a reduction in medical costs for those incarcerated. Specifically, in Butte-Silver Bow County, officials looked at the data for 1 month and estimated that their medical savings were $5,000 a month. Based on these initial estimates, the attorney general’s office has requested that counties further examine the potential cost savings.
Impressions about whether the program is self-sufficient vary across counties. For Montana’s most populous county, which is using existing jail staff to conduct testing, there is a sense that even if an additional staff person were hired as a tester, the county would still not be losing money. For most counties, however, there is a feeling that the program is not yet self-sufficient. For many of the State’s counties with large populations, it is expected that programs will be self-sufficient in time and, in some, even revenue producing. This will be countered by more sparsely populated counties, where the program may never be self-sufficient or revenue producing but worthwhile from a public-safety perspective.
Because the attorney general’s office has been responsible for administering the program and working directly with the counties to get the program established, officials from that office could address issues regarding statewide implementation. Officials noted several challenges:
Although at this time the program has only been in place for 1 to 2 years, individual counties have also noted some challenges. As noted by State officials, practical issues of implementation can arise, such as parking, staffing, and communication among different entities (e.g., courts, prosecutors, law enforcement). In the pilot county, parking emerged as a logistical issue because the county’s courthouse is an old building that was not designed to accommodate activities not directly tied to court business. On days when a trial or jury selection is occurring, additional people coming to the courthouse for testing can result in parking problems. As a result, the county moved the alcohol-testing program to an unused bus shelter. In Yellowstone County, there have been two legal challenges to the constitutionality of the program. In both cases, the jurisdiction prevailed and the court ruled that judges have wide discretion in setting conditions of bond, which may include the 24/7 program. Although there are no reports of issues with staffing, a potential challenge with 24/7 programs is the requirement that testers be onsite every day of the week, including weekends and holidays, which may require changes to staff schedules.
From the limited time the program has been conducted in Montana, some early lessons have been learned. First, there is widespread intolerance regarding repeat DUI offenses, and officials are willing and eager to try something new to deal with the problem. The biggest issue in getting a program established in a county is getting local officials to make a decision. If there are positive attitudes, then questions and concerns can be addressed more easily. Alternatively, if county officials are more ambivalent, getting a program started is much more difficult. Investing time in education and developing positive attitudes about the program before implementation facilitates program adoption and implementation.
Second, communication is critical to success. Given the involvement of many different entities in the program—for Lewis and Clark County, the collaboration involved the State’s attorney general, the county attorney’s office, the Helena City attorney’s office, the county’s sheriff’s office, the Helena police department, Montana Highway Patrol, Helena municipal court judges, and the county’s judges—good coordination among entities is critical. Counties with the most successful programs to date are those that involved representatives from all entities coming together in the planning process and maintaining open lines of communication to ensure that potential problems can be addressed early. Good coordination ensures that there is clarity of roles and responsibilities and procedures are properly implemented. The attorney general’s office encourages counties starting programs to have monthly meetings with all stakeholders during the planning phase and for some time thereafter to ensure adequate opportunities to work out all programmatic problems.
Third, while encouragement and assistance from State-level entities is important, it is also vital to have these come from local officials. Cross-jurisdiction peer-to-peer assistance is invaluable when trying to solve problems (e.g., when sheriffs, prosecutors, or judges in a county in the process of implementing a program can call for advice from their counterparts in a county with an established program).
Fourth, along with regular testers, it is often a good idea to have others trained in administering breath tests should there be a backlog of offenders. In Lewis and Clark County, problems have not arisen with testers being busy and offenders having long waits to be processed. However, the county’s program coordinator noted that booking new detention center residents takes precedence over alcohol testing. If detention officers become overwhelmed, the program coordinator works outside the jail door and can assist with offenders’ testing.
Potential Issues for Transferring to an Urban Area
Officials familiar with the 24/7 Sobriety Program in Montana suggested some potential issues with transferring this model to an urban area.