Constitutionality of new sobriety law questioned

Ryan Dorgan, Jackson Hole News&Guide via Wyoming News Exchange
Posted 8/4/21

A new program intended to promote public safety and reduce incarceration rates is coming under fire for potentially violating the constitutional rights of people ordered to participate in it.

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Constitutionality of new sobriety law questioned


JACKSON — A new program intended to promote public safety and reduce incarceration rates is coming under fire for potentially violating the constitutional rights of people ordered to participate in it.

Almost a year ago the Teton County Sheriff’s Office implemented Wyoming’s 24/7 Sobriety Program, which requires defendants to remain sober between their arrest and trial.

Wyoming’s 24/7 program, created by state law, was originally designed for repeat offenders of alcohol-related crimes. In Teton County it is also being used as a pretrial condition for first-time defendants accused of drug and alcohol-related crimes.

As part of the program’s “intensive monitoring,” most participants have to show up twice a day, during a narrow window of time, to take a Breathalyzer test.

If participants fail the tests, don’t show up or arrive more than 30 minutes late, they go to jail until a hearing is scheduled in front of Teton County Circuit Court Judge James Radda. Their wait in jail can be a couple of hours or more than 24 hours.

The ACLU and local attorneys say Wyoming’s 24/7 Sobriety Program, when used as a pretrial release condition for first-time offenders, may violate:

•The Fourth Amendment for potentially unreasonable searches and seizures;

•The Fifth Amendment for potentially depriving participants of liberty through sometimes repeated pretrial arrests without due process of law;

•The Sixth Amendment for potentially depriving participants of the right to counsel at hearings for alleged violations of the 24/7 testing requirements.

The Wyoming Office of the Attorney General declined to comment on the constitutionality of specific elements of the program. It instead provided the following statement: “The 24/7 program is a valuable tool to help address the problem of impaired driving in Wyoming. We believe the program to be constitutional and lawful.”

Contrary to one of the program’s goals, attorneys suggest that the 24/7 program is actually increasing detention rates among first-time defendants because many of them probably wouldn’t go to jail for their alleged crimes.

“The intention of the 24/7 program was to reduce incarceration, but in practice it’s had the opposite effect in most cases, particularly for first-time offenders,” said defense attorney Dick Stout, who has represented dozens of defendants ordered by judges to join the 24/7 program.

“Most first-time offenders won’t have to go to jail after they’re released,” Stout said. “But in this program they go to jail after any violation. So the net effect is more jail time for first-time offenders.”

The Wyoming law states: “Upon the failure of a person to submit to a test under the program or upon a positive test for alcohol or controlled substance in violation of the program ... a peace officer shall immediately arrest the person without warrant.”

Teton County implemented the 24/7 Sobriety Program in the fall of 2020. The program also exists in Sheridan, Campbell, Sweetwater and Fremont counties in Wyoming and several states across the country.

As of July 29, 141 people had participated in Teton County’s program, according to sheriff’s office data.

Fifty-one people, or 36 percent of total participants, have been arrested for violating program terms, the data shows.

There have been 101 arrests.

The sheriff’s office was unable to tally the different violations that led to the 101 arrests or the numbers of first-time offenders on the program by press time Tuesday. They also could not provide a list of names of people in the program because of ongoing cases and a privacy agreement that participants sign.

The arrest statistics, which the sheriff’s office provided, show that 28 people have been arrested once; 12 people have been arrested twice; four people have been arrested three times; one person has been arrested four times; five people have been arrested five times; and one person was arrested eight times for program violations.

Supporters say the program’s consequences — specifically, immediate detention for violations — encourage defendants of alcohol and drug-related crimes to abide by the program terms.

“24/7 added some nuances that were very appealing to me, specifically that there was an accountability piece,” said Teton County Sheriff Matt Carr.

He compared the program with the pretrial release conditions that judges used before 24/7’s implementation.

Those earlier pretrial conditions, while mandating breath tests, had fewer teeth, Carr said. It allowed one woman in particular, who was prohibited from drinking alcohol, to walk into the jail for a Breathalyzer test, blow hot, return to her car, drive to a remote location and die by suicide, Carr said.

Had the 24/7 program existed at that point, Carr said, that young woman would have been arrested after testing positive, which could have saved her life.

Explaining the 24/7 program’s intention, Carr said: “We do it for public safety reasons. But also to avoid outcomes like that.”

One peer-reviewed study in the American Journal of Public Health documented a 12-percent reduction in repeat DUI arrests following the adoption of the program in South Dakota, where more than 17,000 people had participated in it by the time the study was published.

But while the program may help keep participants and the public safe, critics say there’s no good in forced sobriety when it may breach participants’ constitutional rights.

“We know that when you test somebody often, repeatedly, randomly, all the time, that encourages sobriety,” said Teton County Public Defender Elisabeth Trefonas. “But there’s a fundamental problem in the rules that don’t allow for agency.”

Stephanie Amiotte, the legal director for the ACLU of South Dakota, North Dakota and Wyoming, questioned whether the routine, court-mandated tests are legal.

“Our biggest concern with the program,” she said, “is that it is tied so closely to the issue of bond, and that it requires people to submit to a warrantless search and seizure of bodily fluids, substances or breath when there may not be a probable cause basis for it.”

The release order that 24/7 participants receive after their initial hearing in court includes a judge’s order to enroll in the 24/7 program. To get out of jail immediately, participants must sign the order and another form that outlines the 24/7 program’s rules.

In the second form the enrollees agree “as a condition of [their] bond, pre-trial release, sentence or probation” to “participate in the Teton County Sheriff’s Office 24/7 Sobriety Program.”

While participants must consent to participate in the program, that consent may not be considered voluntarily given since the option can be between additional jail time — if they don’t sign the form — or freedom, Amiotte said.

“When your only choice is between a loss of liberty or consent by signing the form to participate in the program, that is not constitutionally valid consent. It calls into question whether reasonable bail is being given,” Amiotte said.

Requiring participants to submit to warrantless searches is also a problem, particularly for first-time offenders, she said. Typically, searches require probable cause or a warrant, but probable cause can be hard to establish for people accused of alcohol-related crimes for the first time because they have no criminal history of the crime for which they are accused, and they have yet to be convicted.

“It’s an incredibly punitive pretrial release condition for first-time offenders,” Amiotte said.

For first-time offenders, she said, it’s tricky at best and illegal at worst to subject them to mandatory testing.

“The guidepost under the Fourth Amendment for these types of warrantless searches or seizures of bodily fluids or breath is typically for people who have previously been convicted,” Amiotte said.

The original Wyoming law, signed in 2014, stated: “Upon a second or subsequent charge or offense for conduct committed while intoxicated or under the influence of a controlled substance, a court may order participation in the program as a condition of pretrial release, bond, suspension of sentence, probation or other conditional release.”

The amended statute, which Wyoming implemented in 2019, struck the words “second or subsequent,” allowing counties to enroll first-time offenders in the program. The 2019 law states the amended provisions “increase access to the program.”

Carr conceded that the 24/7 program is not designed for alleged first-time offenders, but added that extenuating circumstances, like hit-and-runs, high alcohol concentrations or a mixture of alcohol and drug intoxication can lead the courts to put first-time offenders in the program.

One first-time offender was a participant in the program from June 28 until July 12 after blowing a 0.26 BAC — more than three times above Wyoming’s 0.08 BAC limit — when officers pulled her over, court files state. That person continued to drive her car after she was stopped until it hit a delineator post.

Another alleged first-time offender, court files state, was pulled over June 18 after driving 45 mph in a 25 mph zone. When officers asked the man whether he had been using alcohol, he denied it. He then failed most of the field sobriety tests and blew a 0.163 BAC. That person was ordered to join the program June 21, and left it July 12 after his attorney filed a motion to lift portable Breathalyzer testing.

A third first-time offender was ordered to join the program after her May 23 arrest, which resulted after she drove her car into a parked vehicle that then ran into two other vehicles, creating at least $1,000 in damage to each car, court files state. She blew a 0.24 BAC. She was on the program until June 18.

These alleged first-time offenders each signed onto the program, which wasn’t initially intended for people like them. And once they’re enrolled they can be arrested any time they blow hot, test positive for a controlled substance, show up more than 30 minutes late or show up late three times.

The Wyoming law mandates county sheriffs to “establish the testing locations and times for his county but shall have at least one (1) testing location and two (2) daily testing times approximately twelve (12) hours apart.” The exception, the statute states, is for people using a remote electronic alcohol monitoring device.

In Teton County the sheriff’s office requires alcohol crime-related offenders to take a breath test from 6-7 a.m. and 9-10 p.m.

Critics say the “30-minutes late” threshold is arbitrary because state law sets no specified time for what defines lateness.

“What we are seeing in Teton County is if you are late by 30 minutes or more, you can be immediately arrested as a no-show,” Amiotte said. “We see a possible due process and Fourth Amendment violation at that point, too.”

The sheriff’s office said there’s sense behind that 30-minute threshold.

“We had to come up with something that didn’t disrupt the integrity of the program while still trying to be somewhat lenient,” said Sara King, the alternatives to incarceration coordinator at the sheriff’s office. “We don’t want to be punitive and be like, ‘You’re two minutes late, you’re going to jail.’ But at the same time we also don’t want the person trying to sober up from drinking to take their sweet time getting in so they can manipulate the system.”

Still, the 24/7 program offers no exceptions for anybody who might be late for a circumstance beyond their control, such as a car breaking down, a sick child or the inability to take off time from work.

“The system is not serving its true objective when the sheriff is arresting people for being late for a valid excuse or reason as opposed to testing positive for a prohibited substance,” Amiotte said.

Carr said it is not his job to grant exceptions.

“We’re not going to act as judge and jury,” he said.

King agreed.

“It puts a lot of pressure on the deputies at the jail because this program has been such a big case load for them. We’ve all felt that it’s best to stick to the statute as best as we can, and make their lives as easy as we can, because they’re doing us a huge service by offering testing twice a day.”

But arrests because of the 30-minute-late rule and other stringent requirements may lead to constitutional violations, critics said.

“Even if you spend one night in jail, that loss of liberty is significant, and that’s what the Fourth Amendment and Fifth Amendment are there to protect,” Amiotte said.

When participants violate the program and go to jail, they remain in jail until their hearing is scheduled, which sometimes comes on such short notice that Trefonas, a public defender, cannot make every hearing.

With no attorney present for her clients, Trefonas said, those hearings may violate participants’ Sixth Amendment right to an attorney.

“It’s extremely problematic that we’re having hearings without counsel present,” she said.

Amiotte agreed.

“Once a person has been ordered to participate in the 24/7 Sobriety Program, that person is entitled to counsel at every hearing at all stages of the proceedings, under the Sixth Amendment,” she said. “And every person at a hearing in the 24/7 program has a right to counsel who can make appropriate legal arguments and give them advice at this critical stage of the criminal proceeding.”

While critics said the program may violate participants’ constitutional rights, King and Carr at the sheriff’s office clarified that they are merely implementing a program modeled on the Wyoming law, the Wyoming Attorney General’s rules and the rules that the sheriff’s office are allowed to create.

“It’s not us creating the statute,” King said.

“If there’s a constitutional argument,” Carr said, “that’s a great cause for attorneys to take on, and I always support those challenges. But right now we’re working off of the state statute as it reads.”

Amiotte said the ACLU is continuing to investigate and research the constitutionality of the Wyoming 24/7 program.

Then, she added: “The ACLU has not ruled out litigation if our investigation reveals it is warranted.”