Checkpoint challenge

LIHUE — Approaching a sobriety checkpoint is a monthly occurrence somewhere on Kauai and some residents think they are intrusive once it moves beyond checking for an intoxicated driver.

Kauai Police Department conducted 33 sobriety checkpoints in 2014. Hanalei district had 14 in 10 months. Lihue had 10 in five months, Waimea had four in four months, and Traffic Safety Section had five in four months.

Scott Mijares of Kalihiwai said OVUII checkpoints are fine enough. But they are so much more than that.

“Once you open the car door, it’s like a shakedown,” he said. “They should just stick to sobriety.”

“Alaska Mike” of Kapaa, a retired liquor industry worker from New York who didn’t want his full name published, said he first experienced checkpoints in San Diego. No one wants drunken drivers on the road, he said, but there are better ways for police to identify them, and the other criminals they sweep up at checkpoints.

“I am not OK with it,” he said. “It is an invasion of my privacy and I don’t like to be pulled over.”

Boca Raton, Florida, attorney Warren Redlich contends that drunken-driving checkpoints are a violation of constitutional rights. In an Associated Press story, the attorney claims that drivers do not have to speak to police or roll down their windows, and are required only to place their license and registration, with a note saying they do not wish to comment, will not permit a search, and would like to speak with a lawyer.

The goal is not to prevent OVUIIs, Redlich says, but to prevent situations in which drivers pass tests but still face charges for an odor of alcohol or slurred speech.

“The point of the card is, you are affirmatively asserting your rights without having to speak to the police and without opening your window,” he said.

Not surprisingly, this does not sit well with law enforcement officials who insist drivers must speak in order to make the checkpoints work. And, they point out the U.S. Supreme Court in 1990 upheld the use of random DUI checkpoints, concluding they don’t violate constitutional protections against unreasonable search and seizure.

“They wouldn’t be allowed out of that checkpoint until they talk to us. We have a legitimate right to do it,” said Sheriff David Shoar of St. Johns County, president of the Florida Sheriffs Association. “If I was out there, I wouldn’t wave them through. I want to talk to that person more now.”

What would happen to drivers in the state of Hawaii that do this?

“Any driver who passes through a checkpoint would be screened for indicators of possible impairment and if those indicators are detected, the investigation would continue on from there,” said Kauai Prosecuting Attorney Justin Kollar.

Regarding the Florida scenario in which drivers place their license, registration and “no comment” note against the glass at a checkpoint, Kollar said that if the driver displays signs of possible impairment at a checkpoint there would be further investigation. If they did not, then the driver would be sent on their way.

“Beyond that, it’s not wise to get into hypotheticals,” Kollar said.

A Kapaa resident named Ann, who did not want her last name published, said the checkpoints are largely uneventful. Her concern is approaching them and worrying if having had one drink might result in a lot of hassle.

“I went through one and it turned out fine,” she said. “What bothers me is suddenly coming up to them.”

Hanalei was the only district to report that an OVUII arrest occurred at a checkpoint. Officers made eight OVUII arrests during three of the checkpoints.

At the same time, Hanalei district officers arrested one person on an outstanding warrant and cited drivers for 184 violations, not including one checkpoint reporting “numerous” citations. Hanalei district made 43 OVUII arrests over the entire year including at the checkpoints.

Lihue district went seven months without an OVUII checkpoint, but held five of them in one month including two in conjunction with the Hanalei district. Lihue did not report checkpoint numbers but had a total 47 OVUII arrests for the year.

Waimea district had 41 OVUII arrests for the entire year. Traffic Safety Section reported 42 OVUII arrests for the entire year.

Hawaii allows the counties to conduct sobriety checkpoints with three laws to regulate police procedure. Under Hawaii Revised Statutes, a person operating a vehicle on public roads or waters grants “implied consent” to submit to testing for alcohol and drugs when there is probable cause.

KPD has legal authority to conduct OVUII checkpoints. The minimum standards require officers to stop all vehicles in a patterned sequence for a maximum three-hour period at a fixed location.

While pulled over, police may also inspect to ensure the vehicle, driver and occupants are safe to continue. A driver will be arrested if impaired, is wanted on a warrant, or when illegal contraband is discovered in the vehicle.

Traffic citations may be also be issued for equipment and safety violations, including child restraints and seat belts. A delinquent license, insurance or taxes will also result in a ticket.

The U.S. Supreme Court upheld sobriety checkpoints as constitutional by necessity in 1990. There are 12 states that do not allow checkpoints.

There is no recent change in federal law that would affect state laws allowing this, Kollar added. County police are authorized but not required to set up OVUII checkpoints.

In Hawaii, a petty misdemeanor OVUII carries a possible 30-day jail term and a $2,000 fine. Penalties are more severe with occupants in the vehicle and if they are under age 15.

Refusing a sobriety test results in an automatic revocation of a driver’s license for one year for the first offense. There is a two-year penalty on the second offense, and four years on the third.

The state legal intoxication level for age 21 and older is a .08 blood-alcohol content.

Legal experts said it’s unclear whether Redlich’s tactics will hold up in court. David S. Weinstein, a former Miami state and federal prosecutor now in private practice, said most states consider driving a privilege and drivers give up some rights.

“You may have to roll your window down and interact” with officers, Weinstein said. “These guys are all pushing the envelope.”

Redlich, however, said to his knowledge his flyers have been successful every time they have been used. His goal is not to challenge or confront police, he said.

“I’m not anti-cop. I’m anti-bad government and anti-bad cop. I support good cops,” he said. “I would like if police didn’t waste their time with something like checkpoints and would focus their attention on violent crime.”

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