JACKSON — The ACLU of Wyoming is threatening to sue the state for its use of the 24/7 Sobriety Program on people who have been arrested but not convicted.
Originally created by a 2014 state law, the program allows a judge to mandate a breathalyzer test twice a day, every day, for those awaiting trial on alcohol charges. Any failed test or excessively late arrival — depending on the county — leads to immediate arrest.
The warning came in a “Demand Letter” sent Oct. 15 to Gov. Mark Gordon, Attorney General Bridget Hill, the Teton County Sheriff’s Office and other government entities.
Stephanie Amiotte, the legal director at the ACLU of Wyoming, wrote in the letter that the laws that implemented the forced sobriety program are “unconstitutional both facially and as applied to pretrial participants.”
The ACLU and local attorneys previously told the News&Guide that Wyoming’s 24/7 Sobriety Program, when used as a pretrial release condition for first-time offenders, may violate their rights under the U.S. Constitution. It may violate the Fourth Amendment for potentially unreasonable searches and seizures and the Fifth Amendment for potentially depriving participants of liberty through sometimes repeated pretrial arrests without due process of law, they argue.
The News&Guide was the first Wyoming media outlet to report on potentially unconstitutional elements of the 24/7 program; stories have since been published and republished in several outlets across the state.
“The Wyoming 24/7 Sobriety Program also, in its application to pretrial participants, violates the Fourth and Fifth Amendments,” the letter states. “Most concerning are the constitutional violations that occur through the practices and policies adopted by the Teton County and Campbell County Sheriffs who arrest pretrial participants for merely being late to testing.”
Amiotte wrote in the demand letter that the differences between 24/7 program enforcement across county lines point toward an unconstitutional element of the program.
For example, Campbell County does not have the same late policy as Teton County. In Campbell County, participants are held 12 hours the first time they are late and automatically released; 24 hours the second time and automatically released; and 48 hours the third time with a required hearing.
In Teton County, however, participants are arrested any time they show up more than 30 minutes late or show up late three times, and held until Teton County Circuit Court Judge James Radda’s next available hearing.
“A statute is unconstitutional when it is subject to different interpretations and enforcement by law enforcement,” Amiotte said, referring in part to the different late policies. “This is precisely what is occurring as demonstrated by the Teton County and Campbell County Sheriffs’ differing enforcement of Wyoming Statute § 7-13-1709.”
That statute does not clarify what constitutes lateness, allowing counties to set their own rules. In fact, the statute never explicitly mentions being late.
“No rule, regulation or statute authorizes a sheriff in Wyoming to arrest a person without a warrant for merely being late,” Amiotte stated in the letter.
Teton County’s late policy, among others, can cause irreparable damage to 24/7 participants, Amiotte wrote.
“The Teton County Sheriff’s arrest policy causes irreparable harm to pretrial participants’ employment and families. Arresting pretrial participants and confining them to jail for merely being late also causes irreparable harm to their mental, physical and emotional health.”
Amiotte further states in the demand letter the 24/7 program “disproportionately penalizes those who are indigent, lack reliable transportation and those who are disabled.”
As of July 29, 141 people had participated in Teton County’s program, according to sheriff’s office data. Fifty-one people, or 36 percent of total participants, had been arrested for violating program terms, the data showed.
The Sheriff’s Office has not tabulated how many arrests are related to participants being late.
When a person is arrested for being late or blowing hot, they are held in jail until a hearing is scheduled in front of Judge Radda.
“Pretrial participants in the Wyoming 24/7 Sobriety Program are being held in jail for hours or days without a warrant and without probable cause to believe a crime was committed, which is unconstitutional,” the letter states.
The demand letter also highlights the daily warrantless searches, which Amiotte states are constitutional violations when applied to pretrial participants.
“The Fourth Amendment requires a warrant to search participants except in narrow, well-delineated exceptions which do not apply here,” she wrote. “Only post-conviction is a person lawfully subject to reasonable constraints of liberty and privacy interests through intensive monitoring as an alternative to imprisonment such as when under parole.”
In the conclusion of the five-page demand letter, Amiotte states, “The ACLU of Wyoming requests you immediately suspend the application and enforcement of the Wyoming 24/7 Sobriety Program statutes and Attorney General Rules for all pretrial release participants to avoid litigation of this matter.”
After Teton County Sheriff Matt Carr received and read through the letter, he immediately walked it up to the Teton County and Prosecuting Attorney’s Office, he told the News&Guide. Teton County and Prosecuting Attorney Erin Weisman declined to comment on the matter.
The letter marks a turning point with the ACLU more explicitly suggesting the likelihood of litigation if the program continues to include pretrial participants.
In a statement sent to the News&Guide, Amiotte said, in part, “The ACLU of Wyoming believes all Wyoming pretrial participants have a right to remain free from unreasonable searches and seizures under the Fourth and Fifth Amendment to the U.S. Constitution.”
While it has been almost a month since the ACLU of Wyoming sent the demand letter, none of the government agencies have responded, Communications Director Janna Farley said.
At this point, Carr said, the Teton County version of the sobriety program has not yielded to the ACLU’s stated demands.