February 2014 Bar Bulletin
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February 2014 Bar Bulletin

It's Time To Consider Sobriety Checkpoints

By Matthew L. Fick


In an article titled "DUI Tinkering Needs a Better Solution,"1 Francisco Duarte criticizes the Washington Impaired Driving Work Group's recommendation that the 2014 Legislature amend our state's DUI laws to authorize random sobriety checkpoints as a means to reduce the number of alcohol-
related traffic fatalities in Washington.2 He argues that such checkpoints would be unconstitutional under Washington law and would be ineffective in reducing drunken driving.

I have a different perspective, and unfortunately it comes from personal tragedy. On the morning of April 4, 2013, my sister, Morgan Fick Williams, was killed when her car was hit head-on by a drunk driver driving the wrong way west of the 520 bridge. That horrific accident, coupled with an even more horrific accident 10 days earlier in the Wedgewood neighborhood in Seattle, resulted in the Legislature adopting E2SSB 5912 in June of last year.

In addition to making significant changes to the DUI laws, this statute authorized the creation of the Work Group, whose assignment was to consider additional measures to reduce the number of deaths from drunken driving and to make recommendations to the Legislature. I was invited to participate in the Work Group and had the privilege of meeting with legislators, agency heads, law enforcement officials, treatment agency representatives, judges, prosecutors and defense lawyers to discuss alternatives.

One of the 11 alternatives we discussed was the use of random sobriety checkpoints.3 According to research by the Washington Traffic Safety Commission, the use of sobriety checkpoints is considered one of the "most effective" strategies for reducing drinking and driving.4

I am a lawyer and a big believer in the importance of the Bill of Rights. My first reaction to this proposal, therefore, was that it went too far. The idea of having police officers stopping citizens and questioning them without probable cause to believe that they had committed any crime offended my sense of civil liberties. Having considered this question further though, and having struggled with the devastation caused by my sister's untimely and unnecessary death, my views have evolved. As Mr. Duarte acknowledges, drinking and driving is "pervasive" in our society, and I am coming to the conclusion that sobriety checkpoints might be a good way to change the attitudes and behavior that inevitably result in deaths on our highways.

Mr. Duarte's primary objection is that sobriety checkpoints are unconstitutional under Washington law. It is true that, in City of Seattle v. Mesiani,5the Washington Supreme Court held that checkpoints conducted by the Seattle Police Department violated Article 1, Section 7 of our state constitution, which provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."

There are several reasons, however, to believe that the current Supreme Court might reach a different result under a different set of facts. First, and most importantly, in Mesiani the Seattle Police Department developed the checkpoint program on its own, without specific legislative authorization from the Seattle City Council or the Washington Legislature. Second, the opinion was written by Justice Robert Utter, who is known for advocating an expansive interpretation of our state constitution, even if that interpretation is at variance with the U.S. Constitution.

Finally, the Court also held that sobriety checkpoints constituted an unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution; two years, later, the U.S. Supreme Court reached the opposite conclusion,6 and it did so by applying an analysis similar to Justice James Dolliver's concurring opinion, in which Justice Dolliver wrote that he would find sobriety checkpoints constitutional if they were authorized by the Legislature.

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