Q: I know some other states, as well as British Columbia, use DUI checkpoints to catch drunk drivers. I’ve never seen them in Washington. Why not?
A: The answer you’ll most often hear as to why Washington doesn’t use DUI checkpoints (also called sobriety checkpoints) is that they’re unconstitutional. And that’s almost true. However, that’s not the whole story. I should first clarify that when we talk about DUI checkpoints being unconstitutional, we’re referring to the Washington State constitution. The US constitution doesn’t prohibit DUI checkpoints, unless you’re in Texas, where they prohibit checkpoints based on their interpretation of the US constitution. Some states have laws authorizing the use of DUI checkpoints, while others have no explicit statutory authority either endorsing or prohibiting them. Thirty-seven states and the District of Columbia use DUI checkpoints.
Now for some history. Back in the winter holiday season of
1983-1984, the Seattle Police Department used DUI checkpoints as part of their
DUI enforcement efforts. The checkpoints were challenged, and the trial court
concluded that DUI checkpoints violate article 1, section 7 of the Washington Constitution.
The court of appeals reversed the decision, concluding that checkpoints did not
violate the article 1, section 7 or the Fourth Amendment of the US constitution.
The case went to the Washington Supreme Court where it was again reversed. The Supreme
Court ruled that article 1, section 7 provides greater privacy interests than
the Fourth Amendment and that DUI checkpoints, as conducted by the Seattle
Police Department, violated Washington’s constitution.
At this point it’s probably helpful to review article 1, section
7, so here it is: “No person shall
be disturbed in his private affairs, or his home invaded, without authority of
law.” That one sentence (plus a back-catalog of cases that previously
interpreted that sentence) is what the court used to determine the
constitutionality of DUI checkpoints.
Without getting too legal-nerdy, one
of those previous cases was Brown v. Texas, which has a three-prong test to
determine the reasonableness of a seizure. (At a DUI checkpoint, detaining a
driver is a seizure.) The three criteria to consider are: (1) the public
interest served by the seizure; (2) the degree to which the seizure advances
the public interest, and; (3) the severity of intrusion with individual
liberty. In the context of DUI checkpoints, the public interest is the consequence
of impaired driving, advancing the public interest would refer to the effectiveness
of DUI checkpoints, and the severity of intrusion would be the extent that a
checkpoint interferes with the liberty of the person going through it. Based on
the specifics of the DUI checkpoints that the court was evaluating, they determined
that they were unconstitutional.
However, three justices added that they “believe a sobriety checkpoint program, properly authorized by statute or ordinance, could be designed which would violate neither Const. art. 1, § 7, nor the Fourth Amendment.” They basically said that DUI checkpoints, done right, wouldn’t violate the constitution. The question becomes, “How do you do DUI checkpoints right?” I don’t have the answer to that, but there are people in Washington giving that question some thought.
Why try to get DUI checkpoints in Washington? Why not just continue to use the currently available methods for DUI enforcement? Because DUI checkpoints are a proven approach to reducing impaired driving fatal crashes. Research by the Center for Disease Control found that regular use of DUI checkpoints reduced alcohol-related fatal crashes by 20 percent. Impaired driving continues to be a factor in half of all fatal crashes in Washington. Using data from the past five years, a 20 percent reduction in impairment-related fatal crashes would mean over 250 lives saved in our state. Impaired driving is a behavior engaged in by only a very small segment of the population, but it has a greatly out-sized negative consequence to our community. To be successful at eliminating impaired driving crashes, we need to use every tool legally available to address the problem. Right now, DUI checkpoints aren’t on that list.