[MissoulaGov] Dave's proposal is to make it a criminal offense to refuse the test punishable with a $300 fine

[Jed Taylor]

I'm sure the combined intelligence and creativity of the members of this
listserve could brainstorm a rather healthy list of alternatives over the
weekend.

 

As for my own suggestions, they would begin by focusing on what I heard was
the primary concern of Chief Muir's testimony before the PH&S Committee
about a need to collect more definitive evidence.  I would make sure every
patrol car had a quality video camera to record what the officer sees when
he decides there's probable cause for a stop.  Then I would give each patrol
car a small video camera for the officer to record his interaction with the
suspect.

 

If that's too imposing on an individual officer who is certainly rightfully
concerned with his safety when approaching someone who may be intoxicated,
I'd have the officer call for backup so someone else can tape the
interaction.  In fact, these days it might well be possible to provide the
officer with a small helmet cam with audio so he doesn't have to actually
operate the camera and also protect himself.  Look at the stuff that's
posted to YouTube - technology can be our friend in this mission.

 

I'd also establish a night court, at least on the weekends, and provide the
communications capabilities between patrol cars and this court so the
officer can submit video to the judge and the judge can sign the warrant.
Once there's a signed warrant, it's a completely different story.  My
respect for the service and challenges our officers on the street provide
and face, and what they deal with every day takes a back seat to no one, but
I'm not willing to turn my rights over to their unfettered discretion.
Chief Muir's testimony indicated an average of 10 DUI arrests a weekend.
Fines from these convictions should be able to easily fund such a court.  In
fact, the fines should be made high enough to ensure they do, because these
are the people who should bear the cost of this necessity.

 

Moreover, given the number of people being arrested and convicted already, a
paucity of evidence doesn't seem to be the problem.  Our judiciary does.
Look at the recidivism rate.  The problem isn't finding and arrested
impaired drivers, it's that's our judicial system doesn't treat the crime
with sufficient severity.   There's a ton of improvement to be had here.
And the public can start by stopping to  elect lenient judges.  Judge Loudon
has a reputation as one of these,  and he received a higher percentage of
votes in the last election than John Engen.  How is that possible from a
citizenry that cares what's happening to those who are found guilty?  And to
be clear, I'm not blaming one individual; to be sure, I haven't studied DUI
convictions and sentences out of his court.  But no one can deny that, in
general, our courts do not take crimes people commit with their cars
seriously.  After all, look at how comparatively minor the sentence for
vehicular homicide is.  Dante Stallworth did something like 21 days.

 

I'd also continue the policy of the prosecution insisting on jury trials,
since it appears bench trials are a big part of how charges are getting pled
down.

 

I'd also focus efforts on education and prevention.  Until the drinking
culture changes, you're not going to get the drunks off the road.  It's one
thing to enjoy a pint or two while taking in some live music or unwinding
after work with friends.  It's quite another to intentionally set out to get
plastered.  But currently, it's the latter that's seen by a segment of our
community as an admirable objective, and to do so while still having a car
to get home.  You could make this penalty chopping peoples' hands off, and
you'd still have a problem.  In Europe, they don't have this problem because
they have a completely different societal attitude toward drugs in general.
They enjoy a pint with dinner.   They don't intentionally get hammered and
then drive.  And the few who do and get arrested face severe penalties as
well as intense public shaming.  I understand that certain segments in
Montana consider a DUI a badge of honor.

 

I'd also greatly ramp up alternatives for people to get home when their
quest for pleasure gets the better of them.  For instance, we have van pools
to get people from home to work so they don't have to drive their own cars.
How about something similar, since late night bus service is probably using
vehicles too few and too big to justify the expense in Missoula.  For a
nominal fee, they cruise the bars, fill up, and take people home.

 

I'd also increase foot patrols by known problem areas, because public
intoxication is a crime, and the best time to stop a drunk is before he gets
in his car.  And taping someone stumbling drunk into his car and weaving
away is an excellent first step in establishing probable cause to pull him
over and get the warrant if necessary.

 

Finally, the problem isn't the general pool of people who enjoy an adult
pleasure responsibly.  Anyone who's ever been out in the evening can see
that if you stopped every car and made them blow, a noticeable percentage
wouldn't blow 0.00.  It's the few who insist for whatever reason to drink in
excess and then endanger everyone around them.  Target this small group, not
every fish in the sea.

 

One other thing, and this a pet peeve of mine, is that I'm personally
opposed to applying a single quantifiable (and to get it accurately can also
be a problem) standard to everyone and using that as a substitute for
identifying impairment.  That's the easy way out.  Some people are fine at
.08, some shouldn't be in control of a tv remote at .02.  There's nothing
magic about .08 any more than there's something magic about kids being ready
to drive at 16, assume the full set of adult responsibilities at 18, or
drink responsibly at 21.  It's just that it's far easier to use these
one-size-fits-all standards and hope for the best.  And these standards
don't exist for other drug use, especially for drugs that testing will
detect but whose effects have long worn off.  Our laws should be identifying
impairment and prosecuting this, and the best way to do that is observe
behavior, record it, and show it to a jury of citizens who don't want these
people on our roads any more than you or I do, and then take the sentencing
of those found guilty much, much more seriously than is done today.

 

It's not supposed to be easy for the police to collect evidence.  If someone
wants to live in a country like that, I can supply a long list of nominees
where simply walking down the street may result in interrogation and arrest.

 

And the bottom line, at least for me, is that any proposal that violates our
Constitutional guarantees are off the table.  That's how the rules work.
When we start trading these for expediency and the hope of increased safety,
we eventually will wind up with what Ben Franklin said we would - neither.
To paraphrase the ACLU, rights can't protect themselves; rather, it's up to
every one of us who values them to be sure that whatever is done, our rights
as free individuals who live under a presumption of innocence and explicit
protections from the threat of governmental power are not sacrificed in the
process, and that means everyone, drunks included.  When we get to the point
that we're no longer willing to do that, then we surely have lost our way.

 

 

 

 

 

From: missoulagov-bounces at cmslists.com
[mailto:missoulagov-bounces at cmslists.com] On Behalf Of Ethel MacDonald
Sent: Friday, February 19, 2010 18:23
To: Sherri Davidoff
Cc: missoulagov at cmslists.com; Carole
Subject: Re: [MissoulaGov] Dave's proposal is to make it a criminal offense
to refuse the test punishable with a $300 fine

 

Re Jed's: There are plenty of alternatives that can achieve the same goals
without attacking our civil liberties. 
I do hope you'll enlighten all concerned about these alternatives.  For
sure, we need some.

On Fri, Feb 19, 2010 at 6:18 PM, Sherri Davidoff
<sherri at davidoffsecurity.com> wrote:

Hello all,

As a responsible citizen I care a *lot* about personal privacy, especially
with respect to my body. I would never, ever drive drunk, and it's not right
for a policeman to be able to pull me over and force me to give samples of
my bodily fluids without me even having the opportunity to speak with an
advisor or have the test conducted in a known, safe place. As a responsible
and innocent citizen, I don't think I should be subject to a criminal
offense if I choose to protect my body, my privacy and my personal rights.

I agree with Ruth that "if 6 months without a car doesn't deter these
people, than $300 won't either." If somebody is drunk driving, they are


already not thinking straight. There have got to be better ways to solve
this problem than by penalizing everybody.

In Montana we have a constitutional right to privacy. Let's find ways to fix
this problem which don't threaten the rights of responsible, innocent
civilians as well.

http://data.opi.mt.gov/bills/mca/Constition/II/10.htm

Sherri


Bob Jaffe wrote:

The $300 fine would be a municipal offence. This would be in addition to the
loss of the license which comes from the state law.

 
 
------------------------------------------------------------------------

*From:* missoulagov-bounces at cmslists.com
[mailto:missoulagov-bounces at cmslists.com] *On Behalf Of *Ethel MacDonald
*Sent:* Friday, February 19, 2010 2:37 PM
*To:* Ruth Link
*Cc:* missoulagov at cmslists.com; Carole
*Subject:* Re: [MissoulaGov] Dave's proposal is to make it a criminal
offense to refuse the test punishable with a $300 fine

 
The $300 might convince some to take the test = get a conviction = get them
some help and/or jail time to get them off the road and hopefully into a
program.

On Fri, Feb 19, 2010 at 2:24 PM, Ruth Link <rlink at missoularealestate.com
<mailto:rlink at missoularealestate.com>> wrote:

So will the $300?

 
 
Ruth A. Link

Public Affairs Director, MOR

 
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