24/7 Program

Shelby Bachtold hands a saliva testing swab to a person in the 24/7 sobriety program Wednesday, Jan. 12, 2022 at the Campbell County Sheriff’s Department.

JACKSON — A federal judge has tossed out a lawsuit by the Wyoming chapter of the American Civil Liberties Union challenging Teton County’s 24/7 sobriety program. The court ruled that public safety benefits outweigh plaintiffs’ claims of unreasonable searches and seizures when it comes to forced alcohol breath tests before sentencing.

The program has come under fire for potentially violating the constitutional rights of people ordered to participate in it.

Chief U.S. District Judge Scott Skavdahl dismissed the case in a May 8 ruling, finding that the constitutional claims of three plaintiffs, all former participants of the 24/7 sobriety program, became moot upon their graduation from the program.

Created by state law in 2014, the program originally was designed for repeat offenders of alcohol-related crimes, but in 2019 it was expanded to include first-time offenders. Teton County adopted it in 2020.

Participants, who have been arrested but not yet convicted, must appear at the Teton County Jail for twice-daily breath tests, in the morning and again at night.

Failure to appear, arriving 30 minutes late, arriving late three times or testing positive for alcohol or drugs all result in immediate arrest.

The ACLU of Wyoming has said the program violates participants’ constitutional rights, in part, because 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 for it.

The plaintiffs were asking for $2 million in damages and for Skavdahl to declare the program unconstitutional, saying the program is an “abuse of power ... against indigent Wyoming citizens.”

The three plaintiffs in the case — Alfredo Guillermo Sanchez, David Christopher Ball and Sean Marx — were Teton County residents who were charged with misdemeanor DUI and enrolled in the program before trial. Sanchez and Marx were charged with repeat DUI offenses; for Ball it was a first-time offense.

The men sued defendants Gov. Mark Gordon, Attorney General Bridget Hill, the Teton County Sheriff’s Office and Sheriff Matt Carr, four individual sheriff’s deputies, 24/7 program directors Sara King and Bill West, the program itself and the Teton County Board of County Commissioners.

Skavdahl dismissed Gordon and Hill as defendants.

The dismissal came relatively early in the proceedings; the defendants filed their motion to dismiss Jan. 19.

Sanchez, Ball and Marx stated that the warrantless twice-daily breath tests violate their Fourth Amendment protection against unreasonable searches and seizures and violate their Eighth Amendment rights against excessive bail.

Skavdahl declined to address a host of their state claims such as false arrest and imprisonment, malicious prosecution and intentional infliction of emotional distress, among others.

The ACLU’s Stephanie Amiotte and Andrew Malone wrote that the inflexibility of testing times interfered with the men’s work schedules and that the fees associated with the program were exorbitant.

None of the three men tested positive for alcohol while in the program, but each was arrested at least once.

Sanchez and Ball were arrested on separate occasions after oversleeping, realizing that they would be late for a test and deciding to skip it rather than be arrested. Both men were arrested the next time they appeared.

After arriving three hours late for his test, Marx spent three days in jail due to court closures over the 2022 Martin Luther King Day weekend.

Sanchez incorrectly spent four hours in jail on Aug. 30, 2021.

“Sanchez was arrested for failing to test for the several days prior, but it turned out to be a court error,” Skavdahl wrote in his order. “The trial court had released Sanchez. ... in order to attend a funeral, but the trial court did not sign the furlough order and provide it to the Sheriff’s Office until after Sanchez had been arrested.”

Skavdahl said these arrests were reasonable because there was probable cause for officers to believe a criminal offense, contempt of court, had been committed.

The defendants, represented by Denver attorneys Darold W. Killmer and Catherine Ordoñez, argued that they were entitled to governmental immunity and that the plaintiff’s claims were barred by consent, citing the waiver signed by participants.

The ACLU’s Amiotte previously told the News&Guide that while participants must consent to take part in the program, that consent may not be voluntary because the options are additional jail time — if they don’t sign the form — or freedom.

“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 previously said.

Skavdahl said in his ruling that the men had “reduced expectations of privacy resulting from their consent to the program.”

“In comparison, the degree to which the alcohol breath tests promote legitimate governmental interests outweighs the level of intrusion upon plaintiffs’ diminished privacy concerns,” Skavdahl wrote.

Data cited by the defendants in court documents to support their public safety interests said that in 2019, alcohol was involved in more than 50% of all arrests in Wyoming, and a third of all traffic fatalities are the result of impaired driving.

In 2020, 34% of persons arrested for DUI had been arrested for DUI previously.

The defendants also stated that the plaintiffs lacked standing to seek judgment because none of them were in the 24/7 program at the time the second complaint was filed.

Skavdahl agreed, finding their demand “moot” upon their release from the program.

He also wrote that the injuries enumerated by the plaintiffs — emotional distress, financial hardship and loss of wages — were not continuing injuries.

“Plaintiffs lack standing to assert a claim for prospective relief because no plaintiff was or is suffering a continuing injury from the program, nor is there any allegation that a plaintiff is under a real and immediate threat of being injured by the program in the future,” Skavdahl wrote.

Skavdahl wrote that compared with a blood draw requiring “surgical intrusion,” the breath tests were gentle and reasonable enough not to violate the unreasonable search and seizure protections.

Other mountain states such as Utah, Montana and South Dakota also administer a 24/7 sobriety program.

Campbell County was the first in Wyoming to adopt the program in 2017, modeled after South Dakota’s program. Five counties are participating in Wyoming.

Defendant Sara King oversees the finances for the program. She said that in Teton County, 15 people currently are participating.

King said that she commonly hears that people have trouble paying the fees.

“Every participant pays $100 toward the program fees, which covers the $30 enrollment fee plus a $70 cushion that covers the first several tests,” King said. “After that we don’t enforce payment. We encourage it, but we don’t arrest people if they can’t pay.”

In 2022, King said that the fees from Teton County’s program totaled $25,068.

Twenty-five percent of that is sent to the state; the rest returns to the Teton County Sheriff’s Office to keep funding the program. Most of the money is spent on buying more breath tests and electronic monitoring devices for participants living outside Teton County.

“We offer portable breath tests that people can take and use them during the scheduled times that they need to blow,” King said. “These are reserved for people living in rural areas and farther away like Driggs and Alpine.”

Carr said the state typically requires the immediate arrest of defendants who are unable to pay. Teton County tests them and releases them regardless of their ability to pay that day, he said.

“In other counties, if you don’t pay you sit in jail, and I’m not willing to do that,” Carr said. “This program really keeps our jail numbers down while ensuring pretrial sobriety, which speaks to community safety.”

But attorneys have told the News&Guide that the 24/7 program may increase detention rates among first-time defendants because many of them probably wouldn’t go to jail for their alleged crimes.

The ACLU of Wyoming did not return requests for comment. The group will be able to appeal the decision within 30 days.

Teton County Circuit Court Judge Curt Haws said he orders people into the program on a case-by-case basis.

“My presumption is it’s not appropriate for first-time offenders unless there was reckless or dangerous behavior,” Haws said.

“I look at history,” he said. “If somebody’s had a long history of drug or alcohol offenses, it makes me think that the root cause of criminal behavior could be a substance issue.”

Haws said that when he was presiding in Sublette County he always made people pay between $500 and $1,500 to get out of jail. Now people can be released without “ponying up” that large of a sum.

“It’s difficult for me to think that it would be more economically advantageous to pay $1,500 rather than $4 per day,” Haws said. “With the 24/7 program they are back out, earning and taking care of themselves and their family.”

Haws said that a number of Wyoming judges met last week to discuss the program as part of the Governor’s Council on Impaired Driving.

Changes to the program would need to come from the Legislature, but Haws said he’s considering the feedback on exorbitant fees and would like to see “more flexibility” in the statute regarding tardiness and scheduled time frames.

State statute also requires a personal appearance before a judge as a condition of the participant’s release.

“For example, if somebody shows up late and blows zeroes on a Friday night, rather than have them sit in jail until Monday afternoon the jail agreed to let me do a video conference,” Haws said.

Haws said he’ll schedule video conferences for evenings and weekends to help release people quickly.

“It’s not a perfect program,” Haws said, “but I feel the upside is so strong.”

This story was published on May 24, 2023.

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