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Missoula drivers should not be made into criminals because they hold up the right to be free from unreasonable searches.

That's one argument the Missoula City Council heard Monday against a proposal to curb drunken driving by making the refusal of a breath or blood test a criminal offense. That bid came from the American Civil Liberties Union.

"Refusing to waive a constitutional right should not be treated as a criminal offense," said ACLU of Montana public policy director Niki Zupanic.

But the council also heard impassioned pleas from others. Gary Henricks, a city attorney who said he spoke on his own behalf, noted 13,000 Americans are killed each year by impaired drivers. He pleaded with the council to adopt the ordinance, which carries a minimum $300 fine for first offense when a suspected drunken driver doesn't agree to take a breath or blood test.

"Dead people have no rights," Henricks said, and continued his urging. "I strongly encourage you to set aside any doubts or misapprehensions you have about this resolution and to vote in favor of saving lives."

At press time, the council was asking questions and Councilman Jon Wilkins planned to return the item to committee for more discussion at a later date. Drunken driving has been a persistent problem in Missoula and Montana, and recent high-profile deaths and accidents involving alcohol have mobilized lawmakers and public sentiment.

Currently, refusing a breath test comes with a civil penalty. Drivers temporarily lose their licenses. The proposed ordinance would make it a misdemeanor criminal offense with a mandatory minimum $300 fine for a first offense and a $500 maximum for a second offense of refusing such a test.

Zupanic, with the ACLU, said the penalty does not take into consideration indigent drivers. She said the law wouldn't allow a judge leeway to lower the fine for someone who isn't able to pay.

The ordinance wades into "constitutionally murky territory," Zupanic said. She said she couldn't offer an easy answer for the council, but she also said the proposal didn't punish the crime in question - drunken driving - and it wasn't fitting for Missoula.

"This ordinance removes the presumption of innocence," Zupanic said.

On the other hand, Jim Hutchison, speaking on behalf of his sister-in-law Lonie Hutchison, said the consequences of refusal are so low the risk is worthwhile for suspected drunken drivers. More than 50 percent of traffic accidents in Missoula County involve alcohol or drugs, and he, too, urged the council to pass the ordinance as one piece of a larger solution.

"It is a step forward to improve community public safety," Hutchison said.

It's also a step to save households and employers and workers money, said health economist Steve Seninger, with the University of Montana Bureau of Business and Economic Research.

In one study, more than half of the people injured by drunken drivers spent 24 days or more in the hospital. Alcohol abuse overall costs workers and employers $642 million a year in Montana, he said. One third of that can be attributed to wrecks involving alcohol.

"It's clearly a serious problem," said Seninger, who spoke in favor of the ordinance.

Reporter Keila Szpaller can be reached at 523-5262, or on


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