In 1983 on New Year’s Eve, a close friend of mine, who was driving home near the stroke of midnight, was stopped for no reason at a Seattle Police checkpoint. The police had set up a roadblock for all cars traveling through the checkpoint to investigate all drivers for drunk driving. The site was selected due to the high incidence of DUI arrests and accidents involving alcohol known to occur at that location.
My friend, who knew that the police could not stop a Washingtonian without legal cause, was disturbed with the random check and ensuing criminal investigation. The police looked for evidence of alcohol consumption and intoxication during the unwelcome encounter and, finding none, released him and permitted him to drive home.
During the entire checkpoint program for the 1983 holiday season, a total of 2,412 persons were stopped. Only 22 (or less than 1%) were arrested for DUI, 99 were charged with driving without a license and nine were cited or arrested for other reasons. The fact that only some checkpoints were publicized did not appear to affect the number of arrests.
The experience must have been unsettling, as it would have been for any person. The emotional stress and resulting increased heart rate from an unexpected criminal investigation would leave anyone on edge. No one could possibly enjoy the experience of a forced police encounter without justification, even when sober.
My friend, armed with the legal know-how of the U.S. and Washington constitutions, along with other pillars of the community who endured the same chagrin, challenged the lawfulness of the roadblock, taking the issue all the way to the Washington Supreme Court.
The high court agreed, holding that Seattle’s sobriety checkpoint program was unlawful.1 The Supreme Court noted that an “individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets.”
The Supreme Court added that “undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed.”
Twenty-four years later, Governor Christine Gregoire, opened the 2008 legislative session by asking the Legislature to approve “sobriety checkpoint” roadblocks.2 These roadblocks would have allowed police to conduct, without suspicion, search-and-seizures for intoxicated drivers in designated areas. The governor, who served 12 years as state attorney general, lobbied for the plan, maintaining that nearly 40 other states use similar programs with great success. She also argued that the plan would protect privacy rights and prevent drunken-driving incidents.
The plan was similar, but not identical to, the unconstitutional 1983 DUI checkpoints. It would have placed DUI roadblocks in areas that are known for frequent alcohol- and drug-related collisions. All vehicles, except for emergency vehicles, would have had to stop at each checkpoint. A person who failed to stop could be prosecuted for a gross misdemeanor, which would carry a maximum penalty of a year in jail and a $5,000 fine.
Police would have to get a warrant from the local Superior Court, after giving the judge a plan for a specific location and time period. The proposal also called for advance notice to the public and a court review of how the checkpoint project worked. Lastly, the warrant would have to be approved if the plan “advances the jurisdiction’s interest in reducing impaired driving, taking into account potential arrests under the program and the program’s deterrent effect.”
As expected, the checkpoint plan ran into a roadblock itself in the Legislature. Like Seattle’s 1983 sobriety checkpoints, the new proposal was believed to be highly intrusive subjectively, because the police would search drivers for evidence of intoxication, including smelling their breath, looking for open containers and attempting to elicit evidence of lack of dexterity by asking for a license. Such roadblocks appear to provide police officers unbridled discretion to conduct intrusive searches for evidence, which in the past have proven unsuccessful.
Key lawmakers disapproved of the plan, doubting the bill would pass constitutional muster. Many recognize that the Washington constitution’s privacy protections, which are more stringent even than federal law, would not allow for suspicionless search-and-seizures. In addition, many expected a long battle in court if the bill passed.
Even supporters believed that the bill was on the cusp of constitutionality, one way or the other. While lawmakers agreed with the goal of reducing drunken-driving incidents, they wanted a constitutional way to do it. The governor’s proposal failed, never making it to the legislative floor.
In a remarkable twist of events, the Legislature closed the legislative session by placing on the governor’s desk a bill that came to be known as Washington’s “free pass on a first DUI.”3 This bill surprised many, considering that the Legislature usually seeks to adopt harsher penalties for those convicted of driving drunk.
Section 18 of House Bill 3254 provided that a person may defer prosecution on a first-time DUI offense if the person was determined by the appropriate agency not to have an alcohol or mental health problem and agreed to use an ignition interlock for one year.4 Current law only allows for deferred prosecution if a person is assessed to have a drug or alcohol addiction and agrees, among other conditions, to receive treatment for their addiction. Under the bill, criminal prosecution and Department of Licensing action to suspend the driver’s license would be dismissed upon successful completion of the deferred prosecution.
The bill received both support and opposition from many, including from some unexpected ranks. Supporters, including Mothers Against Drunk Driving, argued that the bill would reduce future incidents of DUI among individuals who have been required to have the devices installed in their cars. They maintain that ignition interlock devices stop repeat offenders, which they determined create the most havoc on the road. With more than 40,000 DUI arrests per year, the proponents of the bill anticipated that the vast majority of those arrested would end up using ignition interlock devices.
Opponents argued that HB 3254 would decriminalize a first-time DUI offense, effectively reducing the deterrent effect of Washington’s DUI laws. They believed that the bill would send the wrong message to the public, although they agreed that the vast majority of first-time offenders are decent, law-abiding individuals who deserve to mitigate the strong penalties of a DUI conviction. However, they feared that the public might view the bill as a one-time get-out-of-jail-free card, failing to reduce the number of drunken-driving incidents.
The governor vetoed the bill, noting that while Section 18 of HB 3254 presented a change in public policy that may very well promote public safety, further review is necessary before making this change. The governor encouraged “stakeholders” to consider the merits of the proposed change over the interim and directed the Division of Alcohol and Substance Abuse to determine if alternatives to treatment, such as the one proposed in Section 18, might be a more cost-effective approach to public safety in instances involving first-time DUI offenders.
The events of the recent legislative session seem to suggest that there is no easy solution to the question of how best to reduce the number of DUI incidents. There may be no solution to the problem as long as the risk of driving after drinking alcohol is generally accepted in our community. Perhaps the law should simply be that it is unlawful to drive after consuming any amount of alcohol? The vast majority of law-abiding folks would adhere to the law even if they didn’t like it.
1 City of Seattle v. Mesiani, 110 Wn.2d 454 (1988).
2 House Bill 2771.
3 House Bill 3254 § 18. The title of HB 3254 is “An Act relating to accountability for persons driving under the influence of intoxicating liquor or drugs.”
4 An ignition interlock is a breath-testing device for motor vehicles.
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