On Jan. 1, a new law takes effect in Alaska that allows jails to detain drunk people until they're sober enough to drive.
The provision, slipped into the recent rollback of Alaska's criminal justice reform law, Senate Bill 54, comes after years of informal ruling by judges for a person to be sober to be released from jail. That practice became scarce after 2015, however, amid the state's push toward criminal justice reform.
Prosecutors and police say the "hold until sober" law will bolster public safety. But an influential Anchorage judge who weighs in on policies that affect bail voiced doubts about its constitutionality last week, since it isn't illegal to be drunk.
How often the Department of Corrections plans to make such detentions also isn't clear. A spokeswoman for the corrections department said she couldn't immediately comment.
Originally sponsored by Rep. Charisse Millett, R-Anchorage, the law says jails "shall conduct a chemical test on the breath of a person who has been arrested and is intoxicated." The law specifically applies to alcohol, which is more easily tested than other drugs.
After the test, the law is more vague on what happens next. It says a jail "may" — but is not explicitly required to — detain a drunk defendant until a chemical breath test shows an alcohol content under the legal driving limit.
A jail can also release the arrested person to another person who can care for them, the law says.
In Anchorage alone this year, about 680 people were arrested on their first or second DUI charge, according to data collected by the Anchorage Police Department. For many years, Anchorage judges, like others around the state, ordered people arrested for drunk driving to be held in jail until they'd sobered up, according to Seneca Theno, the city prosecutor.
But the state's criminal justice reform efforts spurred separate changes in bail procedures. Now many people arrested on DUI charges are released right away with a summons to come back to court later, and other conditions, like not driving.
Theno pointed to one Anchorage case in October, when police made the early-morning arrest of a woman who had been speeding. She was charged with driving under the influence and released with a court date, as well as instructions not to drive, according to a charging document.
A few hours later, the woman came back to her car in a taxi, the document said. The officer who arrested her in the first place walked up and reminded the woman not to drive, because she was probably still too drunk, the document said. Then the officer circled the block and saw the defendant driving her car with no headlights on.
She still smelled of alcohol and handed over her keys, according to the charges.
In an extreme case in Fairbanks, 21-year-old Michaela R. Kitelinger was killed when she wandered into the street after being released from jail. Kitelinger had been arrested two hours earlier on a DUI charge and a breathalyzer test showed her alcohol level was more than twice the legal limit.
"It's a concern that people are being released from jail when they're highly intoxicated," Theno said in a recent interview.
John Skidmore, the director of the state's criminal division, said law enforcement officials were frustrated by what he characterized as weakened enforcement power over people who were drunk and breaking the law.
There were also reports of unruly behavior at hospitals, where people were being taken instead of staying at the jail, Skidmore said.
"Whether it was a public nuisance, whether it was assaultive behavior, you actually had law enforcement literally (having) to go arrest someone multiple times before they were ever even arraigned," Skidmore said.
At the same time, the state's top judges have disputed the constitutionality of whether it's legal to hold an accused person who is drunk. A new statewide list of bail procedures, released by the state's four presiding judges in 2015, pointedly did not address the issue, which then affected the decisions of lower-level judges.
Speaking to members of the Anchorage Assembly last week, Bill Morse, the presiding judge for the Anchorage area, said the question of "hold until sober" policies caused "heartburn" among the top judges. He said he himself found it inappropriate.
"It's not illegal to have liquor in your system," Morse said. "I did not understand why I could keep a person in jail until he or she is completely free of alcohol or below a defined level."
Judges in the northern parts of the state favored the policy, Morse said, since it could be dangerous to release a drunk person into temperatures well below freezing in the winter.
But bail isn't supposed to be punishment, Morse said. He also indicated he was concerned it could lead to people serving time in jail for crimes that no longer carry jail time.
In a memo to the staff of Sen. John Coghill, R-Fairbanks, Kate Glover, an attorney that advises the Legislature, said a blanket policy requiring jails to detain an arrested person until their breath alcohol level dropped below a certain level "may not be constitutional." Allowing that person to be released to a responsible third party, or using the state's involuntary commitment laws for public drunkenness, could help resolve concerns with due process, Glover wrote.
Skidmore disputed the constitutional questions, saying he'd spotted at least one similar law in Indiana. At the same time, he noted the "hold until sober" law did not come directly from the state Department of Law or the Department of Public Safety.
Such a recommendation may have come eventually. In fact, the Alaska Criminal Justice Commission, which has provided research and data to support criminal justice reform, created a special work group to examine whether sobriety could be a condition of bail.
The group was conducting research, Skidmore said, when Millett's bill was added to Senate Bill 54. By November, the entire bill had become law.
Susanne DiPietro, the executive director of the Alaska Judicial Council, which staffs the commission, said the work group will continue in some form.
She said the commission decided at its meeting last week that what passed in SB 54 is "not a complete solution."