Civil libertarians say the Missoula City Council risks treading on constitutional protections if it adopts an ordinance making it a crime to refuse a police officer's request to submit to alcohol or drug testing.
As it stands, refusing to submit to a drug or alcohol test is a civil offense, punishable by a six-month suspension of one's driver's license. If the proposed law passes after a public hearing slated for March 22, refusal would also become a misdemeanor within city limits punishable by a $300 fine.
Most of the debate so far has focused on whether the criminalization of Breathalyzer refusal would fly under the Montana Constitution, which includes strict protections against police searches. But blood tests to detect drug use raise an even trickier legal question, according to Missoula attorney John Smith.
"That's highly invasive," Smith says. "That's a little different than asking you to blow into a machine."
Smith's not the only one questioning the proposed ordinance's constitutionality. Refusing a police officer's request would immediately classify someone as a criminal, forcing people to prove their innocence.
"That's just simply wrong," Missoula resident Jed Taylor told council members last week.
But Missoula officials insist something must be done to curb DUIs. Councilman Dave Strohmaier, who introduced the ordinance, says he hopes it "provides an incentive for folks before jumping in their car, driving and refusing the test."
Nearly 41 percent of people stopped for drunk driving within city limits refuse to submit to drug or alcohol testing, according to Missoula Police Chief Mark Muir. He says the lack of physical evidence makes it difficult to prosecute.
Missoula City Attorney Jim Nugent also backs the ordinance. As for the potential problem with blood tests, he cautions that officers rarely call for them due to the time and expense involved. Even so, he maintains it's an important and necessary tool.
"If you're under the influence," he says, "we don't want to put you back on the street and have you kill someone."