Program applauded by law enforcement, opposed by ACLU

SHERIDAN — Between 7 a.m. and 8 a.m. Monday morning, 26 people filed through Sheridan law enforcement offices to blow into a plastic tube. They returned Monday night. And they will return every 12 hours until their case is decided.

This is how Sheridan County’s 24/7 breathalyzer program works. After being ordered to take part in the program by a local judge — usually as a condition of bond — participants appear every 12 hours to be breathalyzed. So long as no alcohol is detected in their system, program participants are free to go. 

While law enforcement proponents argue the program — at most — saves lives and — at least — stops people from drinking excessively while awaiting trial, civil liberties organizations worry the program is infringing on defendants’ constitutional rights. 

The 24/7 breathalyzer program began in Wyoming in 2017, the result of an addition to the state’s sentencing laws. 

“The purpose of the program,” the law, called the 24/7 Sobriety Program Act, states, “is to reduce the number of repeat crimes that are related to substance abuse by monitoring an offender’s sobriety through intensive alcohol and drug testing and immediate and appropriate enforcement of violations.” 

According to statute, the 24/7 breathalyzer program is administered by the attorney general, but operated in each county by the sheriff’s office. 

In Sheridan County, the 24/7 breathalyzer program is overseen by Undersheriff Levi Dominguez and primarily involves participants arrested for DUIs for whom involvement in the program is an additional condition of their release on bond. 

The program, Dominguez said, operates as a collaborative effort between the Sheridan County Sheriff’s Office and the Sheridan Police Department. While officers at the police department test participants in the morning, officers at the sheriff’s deputies perform evening and weekend testing. 

“It’s a really positive partnership with the police department,” Dominguez said. 

Sheridan County based its 24/7 breathalyzer program, which began in July 2019, on Campbell County’s program. 

Although some programs — including Campbell County’s — test for illicit substances as well as alcohol, Sheridan County’s program only tests for alcohol and has no plans to expand, Dominguez said. 

Overall, Dominguez said, the program ensures people don’t drink excessively or drive drunk while awaiting the conclusion of their criminal cases.

Some, however, question the constitutionality of the 24/7 breathalyzer program. The American Civil Liberties Union of Wyoming, takes issue with the program, arguing the 24/7 breathalyzer program and the punishments used to enforce it are unconstitutional under the Fourth and Fifth Amendments. 

The ACLU of Wyoming objects to the 24/7 breathalyzer program, said Stephanie Amiotte, legal director for the ACLU of South Dakota, North Dakota and Wyoming, because it primarily targets people who have yet to be convicted of a crime. 

Most participants in the breathalyzer program are presumed innocent but compelled to submit to warrantless searches of their person in the form of breathalyzer testing twice daily. This, Amiotte said, is a blatant violation of the Fourth Amendment. 

Amiotte asserted the implementation of the program in certain counties, including Teton and Campbell counties, is particularly problematic because participants are punished — arrested — when they fail to appear for testing or are late for testing. Under the Fifth Amendment, Amiotte said, vague statutes that do not require bad intent on the part of program participants are facially unconstitutional because they can be inconsistently enforced.

In Sheridan County, 24/7 breathalyzer violations work in a three-strikes system, in which first violations — including testing positive, failing to show or repeatedly running late — result in immediate arrest and 24 hours in jail, second violations result in immediate arrest and 48 hours in jail and third violations result in immediate arrests and incarceration until seen by a judge. 

Although Dominguez said the sheriff’s office works with 24/7 breathalyzer participants to approve absences from the program in case of emergency or offer leniency in appropriate cases, Amiotte and the ACLU of Wyoming question the program’s legitimacy. 

The ACLU of Wyoming is currently considering litigation to challenge the constitutionality of the 24/7 breathalyzer program for participants awaiting trial.