A local woman convicted of driving under the influence in 2013 filed an appeal before the Montana Supreme Court last month that seeks to overturn a Missoula law that criminalizes refusal of a blood alcohol test.
"(The law) should be repealed," says Terry Wallace, the Missoula attorney representing the plaintiff, Amber Armitage.
Prior to 2010, state law governed breath test refusal rules in Missoula. Declining a law enforcement officer's request to yield to an alcohol test earned motorists a six-month driver's license suspension. A spate of local drunken driving fatalities, including the deaths of two Hellgate High School freshmen in 2009, and mounting frustration from law enforcement who believed the state law made it too easy to skirt the rules, prompted the Missoula City Council to make breath test refusal a misdemeanor punishable by a $500 fine.
Wallace argues the two lawscity and stateconfuse the situation. He adds in court filings that the city statute prompted his client to "act against her will," unduly influencing her to take a breath test that enabled prosecutors to secure the DUI conviction.
To bolster his claims that Missoula overstepped its lawmaking authority, Wallace cites a 1956 Montana Supreme Court precedent in the case, City of Billings v Herold, which found state drunken driving statutes trump municipal ordinances.
In response, Missoula City Attorney Jim Nugent says the law is working exactly as intended. He rattles off a list of state statutes and other mandates empowering cities and towns to regulate local streets, and notes that a lot has has changed since 1956. Specifically, he points to Montana's 1972 Constitution granting local governments "liberally construed" powers. A 1997 city charter further solidifies Missoula's powers of self government. "That includes regulating DUIs," Nugent says.
Prior to the Supreme Court appeal, Missoula District Court Judge Dusty Deschamps agreed with Nugent when finding that Missoula may exercise any power not expressly prohibited by state and federal statutes. Deschamps noted that Armitage "has identified no such prohibition."