A zero-tolerance testing approach to reduce drunk driving and other alcohol-related crimes that began in South Dakota could expand its reach nationally, despite concerns from critics that it limits constitutional rights of some participants.
The 24/7 sobriety program, developed by former South Dakota Attorney General Larry Long, requires violators to submit to a twice-daily breathalyzer test or remote control as a condition of a pretrial judgment or a judgment agreement. Failing to stay sober means the participant is sent to prison, a factual doctrine that independent studies have found to have coincided with a decline in DUI and other alcohol-related crimes.
"That's why it works," Long said of 24/7 Sobriety, which is rolling out in South Dakota, North Dakota and Montana and is being tested in four other states. "These guys know that if they show up and get turned on, they're going to jail."
South Dakota is a testing ground for lawmakers and policy analysts trying to lessen the impact of alcohol abuse, which the Centers for Disease Control and Prevention says kills more than 140,000 people nationwide each year. at an annual cost of nearly $250 billion. labor productivity and health spending. Since 24/7 Sobriety began in 2005, South Dakota has had more than 39,000 participants and has completed nearly 12.5 million tests with a 98.8% pass rate, according to the attorney general's office.
All but four South Dakota counties -- Buffalo, Jones, Oglala Lakota and Todd -- use the program, which targets repeat offenders and is largely self-funded because testing costs are passed on to participants. The original system, which focused on convicted drunk drivers, has been expanded to other alcohol or drug cases, including cases involving abused or neglected children, and as a condition of maintaining a work permit.
In most counties, if the participant fails or fails to show up for a test for the first time, they will be jailed for 12 hours, followed by 24 hours for a second offense and 48 hours for a third offense. Any other violation will be brought before a judge, who can lift the bail or plea agreement and put the offender behind bars for an extended period of time.
The next test for the program is to see if 24/7 Sobriety can be successful on a national level. Rep. Dusty Johnson, a South Dakota Republican, is cosponsoring bipartisan legislation to offer states grants to adopt the intervention model, while encouraging more studies on its impact on drug and alcohol rehabilitation.
The SOBER (Support Opportunities to Develop Daily Responsibility) Act would help cover the administrative costs of the equipment, which includes not only breathalyzers but also urinalysis, medication patches, surveillance bracelets and ignition interlock devices that prevent a vehicle from start when the driver is not breathing. .
Johnson noted that those awaiting trial or on probation can keep their jobs and be with their families by staying away from alcohol and drugs, which in many cases has been a factor in their criminal behavior. Ideally, counseling and other services are part of the recovery process, rather than waiting for offenders to "clean up" behind bars.
“I am in awe of how far ahead of its time South Dakota was,” said Johnson, who did not give a timeline for when the bill might reach the House Judiciary Committee. "Now, most Americans understand that the best way to deal with addiction is not just to put someone in jail. Dealing and daily responsibility must be part of this journey. We talk about it every day in [Washington D.C.] now, but South Dakota talked about it decades ago and put together a pretty solid program with pretty good results."
Opponents point to civil rights issues
Critics claim these results came at the expense of constitutional protections for the participants, many of whom are awaiting trial and have not been convicted of any crimes. There are also questions about passing on the costs of the program to participants who cannot afford it, in addition to attorneys' fees, fines, mandatory consultations and other costs associated with your case.
Breathalyzers are $2 per day, while the more expensive options - remote breath test for $5 and SCRAM (Continuous and secure remote monitoring of alcohol)Wristbands for $6 per day – Allow participants to avoid twice-daily trips to the county jail or sheriff's office to get tested.
"It's a luxury that a lot of our clients can't afford," said Traci Smith, who heads the Minnehaha County Public Defender's office. Although the program is designed to keep people out of jail in some cases, Smith said he is concerned that the expanded use of 24/7 sobriety will make it a panacea to replace forms most appropriate for rehabilitation.
"I think it's a good tool, but I don't know if it's a universal tool that should replace everything else in the toolbox," said Smith, who started as an assistant public defender in 1999. "It's not the same as treatment, And I think sometimes people outside of the treatment world forget that. You can't always go to prison or law enforcement to solve our problems."
Smith has seen enough cases to know that the program's positive effects are often temporary, sometimes due to participants skirting the rules.
"What clients tell me is that once they get their schedule, they drink enough to know when to come 24/7 and not get held up," Smith said. "Instead of addressing the real problem, which is the trauma behind the addiction, they just learn to play the game."
Die American Civil Liberties Unionearlier this year filed a federal lawsuit against the 24/7 sobriety program in Teton County, Wyoming, allegingbreath tests twice a dayamount to "unlawful search" and violating the Fourth Amendment. The complaint also alleged violations of the Eighth Amendment for excessive bail due to fees that disproportionately impacted needy attendees.
In April, a district judge rejected a request for an injunction temporarily closing the Teton County program targeted by the ACLU because it included first-time offenders, not just repeat offenders. Stephanie Amiotte, the ACLU's legal director for South Dakota, North Dakota and Wyoming, said the 24/7 sobriety case is "pending and active" and that her organization could file similar lawsuits in other states.
"Treatment programs are often the best indicator of whether someone will relapse or contribute to their sobriety," Amiotte said. "Locking people in jail, making them lose their jobs, making them pay money they don't have, is really not the best way to bring about change when someone has a drug problem."
But advocates point to encouraging data from groups like the RAND Corporation, a California-based political think tank, which found declines in DUI and domestic violence arrests in states that have adopted the model.
A 2020 Journal of Policy Analysis and Management study published by RAND found that a 24/7 participant was nearly 50 percent less likely to be re-arrested or have their probation revoked for DUI within 12 months. to their arrest than non-participants. .
"These results support 'fast, safe and fair' approaches to sanctioning in community supervision," the study authors concluded. "They also provide policymakers with evidence of a new approach to reducing criminal activity among those whose alcohol use causes them to repeatedly compromise public health and safety."
The vision of new approaches is taking shape
Larry Long grew up in Bennett County, where he spent 18 years as a prosecutor in the 1970s and 1980s, dealing with a steady stream of alcohol-related crimes, many involving repeat offenders.
Those caught drinking while out on bail faced penalties such as losing their driver's license, their vehicle or mandatory treatment, but that couldn't stop the most chronic alcoholics from ending up back in jail.
"The sheriff and I were sitting around one day trying to figure out how to make some space in our jail," Long told News Watch. "We came up with the idea of testing people twice a day to enforce a standard rule, which is don't drink while on bail. The jail was across the street from the sheriff's office, so literally We walked them down the hall and put them behind bars."
Long likened the experience to touching an electric fence: "You never intentionally touch it a second time," he said. "What we found was that we could keep heavy drinkers sober for two to three months at a time, allowing better habits to take root."
He joined Pierre in 1991 to become assistant attorney general under Mark Barnett, and took over as attorney general in 2003 with Republican Mike Rounds as governor. When Rounds formed a corrections task force to deal with rising incarceration rates, Long saw an opportunity to test the 24/7 sobriety program on a broader scale. In 2005, he piloted the concept in three counties: Minnehaha, Pennington and Tripp, to see if the success in Bennett County could be replicated across the state.
Byron Nogelmeier, now the state's 24/7 sobriety coordinator, was serving as Turner County sheriff at the time and recalled his skepticism of Long's vision.
“He came to a South Dakota Sheriffs Association conference and took them to the table and explained how it had worked in Bennett County,” Nogelmeier said. "Most of us came away thinking, 'Wow, how is this supposed to work?' But the more information he gave us and the more we saw of the pilot program, the more convinced we became."
Long hired Bill Mickelson of the South Dakota Highway Patrol to run the program, which involved raising money for equipment and collecting data on alcohol-related convictions. The National Highway Traffic Safety Administration found that the number of alcohol-related traffic deaths in South Dakota dropped from 71 in 2004 to 34 in 2008.
By then, lawmakers had passed legislation to offer the program statewide, allocating $350,000 in state funds in 2007 and $400,000 in 2008 to target chronically intoxicated drivers who violated pretrial rules and consumed alcohol while on bail. The cost of the program was soon passed on to the participants and the districts had the opportunity to implement the system.
"We narrowed it down to (second offense) DUI or higher and focused on people who were arrested for DUI and had a criminal record within 10 years," Long said. "The judges started to see what we had seen in Bennett County, and more and more of them joined in."
"He probably saved my life"
When David Whitesock moved from North Dakota to South Dakota in 2005 and began working at Winner radio station, he already had four drunk driving arrests, three failed college visits, one eviction from his home, and a pink slip. from his last job. He struggled with anxiety and depression, which increased his addiction to alcohol.
When he was arrested for the fifth time for drunk driving, three months after arriving at Winner, he expected to post bail and show up for his next job, just like in the past.
"They said, 'No, we have a new plan here,'" Whitesock told News Watch. “They told me that if I was blowing at zero I could leave and as long as I continued blowing at zero twice a day I could continue working until I was sentenced. He opened my eyes ”.
For three months, while I was an announcer, I would go to the police station, which was right in front of the radio station, at 7 am. m. and at 7 p.m. m. blow into a tube
"I put on a six-minute song, something by Led Zeppelin, ran out the back door and they (officials) knew I was coming," he said. The one time she forgot, he tried to excuse himself, but he was thrown behind bars pending his sentencing date.
When that day came in September 2005, he walked into Judge Kathleen Trandahl's Tripp County courtroom in an orange jumpsuit feeling discontented and hopeless.
"I'll never forget that day," said Trandahl, who retired as a judge in 2016. "He looked like a cat that had been thrown behind a pickup truck for two weeks. He was clearly in trouble just looking at him."
Trandahl was familiar with the 24/7 Society program because her district included Bennett County and she had campaigned to be a part of Long's pilot program. She saw that the zero-tolerance doctrine suited Whitesock well, who despite his struggles had strong family support and was educated enough to understand the weight of court expectations.
“It was blatantly obvious that the criminal justice system had let it down in North Dakota,” Trandahl said, noting that the state did not have 24/7 sobriety at the time. "He had somehow managed to rack up four DUI convictions and other crimes and had been in and out of prison. And yet he had never been treated, never been on probation and there had been no forensic supervision. No help was offered to him and I felt the court owed him this opportunity.”
He handed Whitesock a 5-year sentence with supervised probation and a two-year suspended sentence. He was hospitalized at the Yankton Human Services Center for 147 days until he found a place in a sober house in Sioux Falls, which the judge approved under the 24/7 sobriety system.
For the next 947 days, he rode his bike twice a day to the Minnehaha County Building for his breath tests while working and attending 12-step meetings. As the toxins left her body and her mind cleared, she charted a course to enroll in the University of South Dakota with the judge's blessing.
"If you get up at 6 a.m. every morning and ride 26 blocks, then get back on your bike and do the same thing again that night, that establishes a certain level of discipline," Whitesock said. "That structure, given how my life was before, was a turning point for me."
He met his future wife in USD and worked his way up to law school, transitioning from 24/7 sobriety to a more conventional form of probation. On Aug. 3, 2013, he returned to the Winner courtroom with his family, this time for his attorney's oath after passing the bar exam, and Trandahl administered the oath.
She worked as a data analyst for Face It Together, a Sioux Falls nonprofit dedicated to fighting drug and alcohol addiction, and in 2020 founded her own New York-based company that uses data collection to "Measure well-being and quality of life in relation to the effects of addiction.”
david white sock
Whitesock sees 24/7 sobriety as a blow to the system, but not the only answer for chronic offenders. Both he and Trandahl admit that 947 days of twice-daily testing became a crutch and that he needed to prove his sobriety while still having the safety net of probation and random testing.
But Whitesock also thinks it was a twist of fate that he was in one of Larry Long's pilot counties when his fifth DUI occurred after moving to Winner from North Dakota.
"Tripp County entered the program because of Judge Trandahl in February 2005 and I applied in June," he said. "It was the two largest counties in South Dakota and then a small county squashed between Native American reservations, and that's where I ended up after a decade of personal destruction. That probably saved my life."
Different paths to sobriety
Rep. Johnson supports South Dakota's 24/7 sobriety model, but acknowledges that other states may need to find other ways to implement the program. The SOBER Act would provide states with $250 million over five years to "create, sustain and expand" their programs and collect data, with the common goal of preventing prison overcrowding and reducing recidivism rates for DUI and other crimes.
"I have pretty strong opinions on this issue, but I don't think all the wisdom in D.C. lies," Johnson said. "Instead of forcing my opinion on the states, we wanted to give them the flexibility to chart their own course. Maybe we all will." in different ways and we can learn what's best through time and data."
Johnson's bill is supported by the National Sheriffs Association and the Niskanen Center, a libertarian-leaning think tank in Washington. But other groups have been a harder sell. MADD (Mothers Against Drunk Driving) has criticized the 24/7 sobriety system for focusing not only on drunk driving but also on alcoholism in general, which they consider too broad.
“His approach is different,” said Long, who served two terms as attorney general and then became a district court judge before retiring in 2018. “His main tool is the blocking device, designed to prevent a person from drunk drive a car Our goal is different. We want this person to stop drinking so they are no longer at any level of the criminal justice system. We don't want him to drive drunk, we don't want him to hit his wife, we don't want him to mistreat his children, we don't want him to urinate on the sidewalk, we don't want that. we want a lawyer so we have to appoint him, and we don't want to have to pick a jury for him. That's what we're focusing on, and it's cheaper.”
In addition to states that have implemented 24/7 statewide sobriety, there are pilot programs that have been implemented or approved in Alaska, Florida, Idaho, Nebraska, Washington, Wisconsin, and Wyoming.
The Wyoming Legislature passed a 24/7 sobriety law in 2014, but it sparked controversy with a 2019 amendment that expanded the scope of the program to include first-time offenders, making breath tests are "daily warrantless searches," according to the ACLU.
A district judge dismissed some of the ACLU's arguments in denying the request for injunctive relief, writing in his opinion that the plaintiffs "threw a lot of spaghetti against the wall in this proceeding and nothing stuck."
What happens next in this case will be closely watched as Johnson rally support for his bill and try to get it through the House of Representatives, which could become more realistic after the November midterm elections. What started as an unconventional experiment in Bennett County could take hold across the state if the GOP regains control.
"There has been a change in thinking, especially among Republicans," Johnson said. “Thirty years ago, the prevailing thinking among Republican lawmakers was that the punishment was severe enough to deter crime. We now know that it is the certainty and speed of sanctions that change behaviour, and that is a positive step”.
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About Stu Whitney
Stu Whitney is an investigative reporter for South Dakota News Watch. Whitney lives in Sioux Falls and is an award-winning reporter, editor, and novelist with more than 30 years of journalism experience. Contact Stu at email@example.com