ACLU sues Teton County over sobriety program

By: 
Kate Ready with the Jackson Hole Daily, from the Wyoming News Exchange

JACKSON —After months of threatening to sue, the ACLU of Wyoming has filed a federal lawsuit challenging Teton County’s 24/7 Sobriety Program, saying that court-ordered daily drug and alcohol tests violate the constitutional rights of people not yet convicted of a crime.

Originally created by a March 2014 state law, the 24/7 Sobriety Program was implemented in Teton County in the fall of 2020. People charged with suspected DUIs are required to remain sober between their arrest and trial, allowing a judge to mandate a breath test twice a day, every day.

“The 24/7 Program invades the daily lives and bodies of pretrial participants through burdensome, expensive and invasive bodily testing solely because they have been merely accused — but not yet convicted — of an alcohol or drug related offense,” the lawsuit said.

The twice-daily breath tests are administered by Teton County Sheriff’s Department deputies between 6 a.m. and 7 a.m. each morning and from 9 p.m. to 10 p.m. nightly.

Teton County offers remote testing for those who can’t arrive in person for their breath tests.

The program operates in five counties: Teton, Sheridan, Campbell, Fremont and Sweetwater. Rules for implementation can vary by county.

Any failed test or late arrival in Teton County leads to immediate arrest. 

Participants go to jail until a hearing is scheduled in front of Teton County Circuit Court Judge James Radda, which occurs within 24 hours, Teton County Sheriff Matt Carr said.

The release order that defendants 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.

Over the course of three months, 66 people in Teton County were required to provide testing under the 24/7 program and a total of 2,105 alcohol and drug tests were administered from October 2021 to December 2021.

Local members of law enforcement like the program.

“I feel strongly that it helps keep the public safe,” Sheriff Carr said. “I’m a huge supporter of people not being incarcerated but keeping them sober as they go through the court process.”

The ACLU of Wyoming filed the 56-page lawsuit in the U.S. District Court of Wyoming on behalf of two individuals — Alfredo Guillermo Sanchez and David Christopher Ball, previous 24/7 participants who were charged with driving under the influence. All other pre trial participants of the program are also included in the lawsuit.

Ball took breath tests twice daily for three weeks while Sanchez took breath tests twice daily for more than four months, resulting in the two plaintiffs cumulatively providing almost 300 breath tests.

Ball and Sanchez were arrested for violating program procedures — arriving 30 minutes late to testing or being late at all to testing on three occasions — regardless of whether the plaintiffs had a positive test.

Sheriff Carr is listed as one of the defendants in the case, along with Sara King, the director of the program in Teton County, as well as other individual sheriff’s deputies. Wyoming Attorney General Bridget Hill, Gov. Mark Gordon and other government officials are also defendants.

“Requiring participants to submit to warrantless searches is problematic for all persons who have been arrested and merely accused of an offense but who are not yet convicted,” said Stephanie Amiotte, ACLU of Wyoming’s legal director.

“Pretrial participants in Wyoming’s 24/7 Sobriety Program should be presumed innocent until proven guilty and are entitled to due process and meaningful hearings. Without that, the 24/7 program is an egregious violation of their constitutional rights,” she said.

Hill, the state attorney general, declined to comment on the lawsuit.

Specifically, the ACLU argued in its filing that the 24/7 program violates the 14th amendment for depriving participants due process of law by arresting them immediately for a violation of the program.

One pretrial participant spent six days in jail after being arrested the night before Thanksgiving. He said his car broke down, causing him to be late to testing by more than 30 minutes. His test result was negative, but he was still arrested and held in jail for six days, according to the document.

The court filing also said that participants’ fourth amendment rights are violated by the program, which “unreasonably authorizes officers to search a person without a warrant by taking breath, urine, skin-patch or saliva tests repeatedly — without a recognized exception to the search warrant requirement.”

“There are a lot of valid questions regarding the constitutionality,” said Dick Stout, a defense attorney with the DeFazio law office. “I’ve seen it’s been used more against first-time offenders than second or third offenders. It’s increasing incarceration for those people, and I think that’s an issue.”

Carr said there is at least one violator per week who is incarcerated, although he has seen a positive impact on the Teton County incarceration rate since the program was implemented in 2020.

“We have a 44-bed prison facility here and in the summer months, we often had 50 to 60 people incarcerated,” Carr said. “The majority of those were alcohol-related issues. In the last few years, we’ve seen those incarceration rates decrease; now it’s rare that we have over 20 people here in jail.”

Questions around the financial burden 24/7 places on its participants is also at issue and whether this violates the eight amendment prohibiting unreasonable bail conditions.

Participants are also charged a $30 enrollment fee and pay $2 per breath test, which over the span of weeks and months can amount to hundreds of dollars.

Participants are not provided a hearing to determine whether they can afford to pay the testing and enrollment fees or obtain transportation to testing twice daily.

They may, however, be released from the program if they obtain a substance abuse evaluation at their own expense, although the ACLU argued that evaluation is costly.

“Those who can afford to get the assessment quickly spend significantly less time on the 24/7 Program, give far fewer tests, and spend much less money on testing fees than indigent persons,” according to the lawsuit. 

Under the original version of the statute passed in 2014, only those arrested and charged with second and subsequent DUI or drug offenses, probationers or parolees could be ordered to participate in the 24/7 program.

On Feb. 15, 2019, the Wyoming Legislature amended the law to say those with a first-time suspected DUI or suspected drug arrest could be ordered to participate in the 24/7 Program.

The ACLU of Wyoming is demanding a jury trial.

 

This story was published on March 8, 2022.

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