Just before midnight, Billings Police Officer Marc Snider witnessed a young woman drive the wrong way through downtown and then roll over the median in a bank parking lot. He stopped her on the wrong side of the street by the Billings Gazette. Fellow officer Brandon Ihde drove over to assist.
“I’m officer Ihde with the Billings Police," he says. "Officer Snider called me over because I’m part of the STEP team. So I do drug interdiction, DUI, traffic and things like that.”
He leads the woman to the sidewalk and conducts a field sobriety test, which Snider records with the video camera in Ihde’s car. “Okay, Ashley. Bring your hands back here. I’m going to place you under arrest for DUI. We’re going to go down to the DUI center and we’re going to do some more testing down there. Okay? It’s not going to be quite so cold down there.”
The DUI center is at the Yellowstone County Detention Facility. It has three testing rooms – one each for the Billings Police Department, Montana Highway Patrol, and the Yellowstone County Sheriff’s office. Red lines are on the floor for the sobriety test and an Intoxilyzer is in the corner for breath tests. A video camera records activities in the room.
Ihde reads the Montana implied consent advisory to Ashley, then asks: "Will you take a breath test?" He then walks her through the process. “What I need you to do is put your lips on this small section here. You need to take a long, deep breath and blow just like you’re blowing up a balloon. Okay? But don’t grab onto the hose because I don’t want you to break that off. Okay. Long deep breath. Blow really hard. Keep going. Keep going. Keep going. Keep going."
She blows a .104. Under Montana law, .08 or greater is considered to be under the influence. Ashley then refused to answer any questions or make a statement, so the interview was stopped and officers walk her to the detention facility.
In addition to a half-dozen traffic stops, this was just one of four DUI calls for Ihde that night. And he uses the same procedure for each suspect.
Prosecutors asked the 2011 Montana Legislature to close a loophole they said allowed repeat offenders to not be held accountable. The Montana attorney general’s office testified that nearly 3,000 suspected drunk drivers refused a breath test in 2010, a record. Those who refused to take breath test that year was greater than the number of people convicted of a first offense DUI. Lawmakers passed Senate Bill 42 and it was signed into law last April.
Law enforcement officials across the state are now using the telephonic search warrants for suspects with a prior refusal, past conviction, or pending offense, and Officer Ihde calls one in. “Judge Knisely. This is Officer Ihde, badge number 316, with the Billings Police Department. I am requesting your assistance with a telephonic search warrant for a DUI investigation for a second or subsequent offense. My testimony is being recorded and Officer Firebaugh, badge number 398, is my witness. Will you swear me in please?"
Ihde uses the affidavit in support of a telephonic search warrant to tell the judge the reasons and circumstances for seeking permission to draw blood from the suspect. Permission is granted and the warrant is served. Four officers from the detention center join the two Billings Police officers. The woman is placed into a restraining chair, then a member of the facility’s nursing staff draws 2 vials of blood for testing. The process is videotaped; all of the documentation is submitted to the District Court.
It was about 1:30 Saturday morning when Officer Ihde called Judge Mary Jane Knisely for telephonic search warrant request. Later in her chambers, Knisely says the phone calls are part of the job. “I answer the phone pretty easily now," she says, "and I am kind of a light sleeper.” She adds that she makes sure she's taking notes "so I am awake and I know what I am doing. And I am hitting the four corners of the search warrant.”
The judges take turns answering these phone calls. District Judge Russ Fagg also takes the calls in stride, even if they come in the middle of the night. “I think it is our responsibility to take care of the cases in our district," he says, adding that although he has turned down warrant requests in the past, " I have not turned down any telephonic search warrants for a DUI blood test yet." He explains: "Under the U.S. constitution, they have to show probable cause for the request. So I look at what is their probable cause to do that. And do they have probable cause to think, to believe the person is under the influence of alcohol. And if I ever determine that I don’t think they have that then I would certainly turn it down. But I haven’t done it so far.”
The judges and prosecutors say it's too early to tell if the word is getting out about the telephonic search warrants seeking a blood test for DUI arrests, or if it has meant more defendants entering a guilty plea rather than have their case heard in court.