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HELENA – Passengers should be able to drink even if the driver cannot, argued a Billings legislator seeking to change the state’s open container law.

House Rep. Daniel Zolnikov, R-Billings, admitted Tuesday that the measure might incur a federal penalty – some highway aid funds would have to be spent on safety rather than construction – but he did not think that threat should stop the state from passing common-sense legislation.

He listed several times when a passenger might want to drink while the driver does not, which he argued would not affect public safety: driving to a fishing hole, returning home from hunting, at the end of a community baseball game, or hopping in the car to help a friend move something while setting up an event.

The bill would allow a passenger to have an alcoholic beverage in the immediate vicinity. Zolnikov said it would not protect a driver who had been drinking. He argued it might actually help officers identify more drunk drivers by signaling the vehicle had been coming from a party and by reducing the number of passengers who disguise their alcohol by mixing with coffee or lemonade.

Current state law does not allow open alcoholic beverages anywhere in the cab of a car – only in a locked, contained area like the trunk – so drivers cannot pass blame when stopped by police. The law was amended and written that way in 2005 to comply with federal rules that urge states to ban beverages in any passenger area of a vehicle. If they do not, 2.5 percent of federal highway aid each year will be transferred from construction to safety programs, said Lynn Zanto of the Montana Department of Transportation.

“It would take Montana out of compliance with the federal open container requirements,” she said, saying the penalty transfer would amount to $9.6 million at current funding levels. “House Bill 206 is not a loss of funding, but it’s a loss of flexibility for the department to direct highway funds to the most essential, cost-effective improvements we try to do to extend the life of our assets.”

Zolnikov questioned whether federal officials would actually enforce the penalty transfer. Even if they did, he said Montana’s laws should be determined by what’s best policy, not federal threats.

He argued the law as written made criminals out of passengers who do not have a direct effect on driving safety. He dismissed arguments that drunk or drinking passengers are any more of a distraction than kids in the back seat, putting on make-up or smoking. He also said even if passengers tempt the driver to join in, the responsibility not to do so still falls to the driver.

“It doesn’t really make sense,” he said. “Are you doing anything wrong? By the law, yes. In reality, no, from the examples I’ve seen.”

No one spoke in support of the bill.

Rebecca Sturdevant from Mothers Against Drunk Driving and the Montana Common Sense Coalition argued the bill would weaken a law critical to reducing the number of drunk drivers and related fatalities.

“For a while my husband and I ran a taxi company because we wanted to help drunk drivers get home. I frequently got offered drinks. It is legal for people in a taxi to have an open container. If they’re going to offer an old lady like me, who’s supposed to be sober, what do you think is going to happen with a car full of kids?” she asked. “I can assure you if the driver is drinking, he’ll hand the beer off to somebody else. Come on. Give me a break.”

Sturdevant also argued against personal freedom as a good enough reason to change Montana’s law.

“I’m asking you as a group of legislators, whether it’s really appropriate to trade personal freedom for death."

The committee did not take action on the bill Tuesday.

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