The Constitutional Question Of Sobriety Checkpoints In Washington State

May 13, 2013

Correction: The broadcast version of this story states that the Fourth Amendment protects against illegal search and seizure, when in fact it protects against unreasonable search and seizure. 

Washington’s lawmakers are debating new penalties for driving under the influence during a special legislative session beginning Monday.

One measure not being looked at is the question of sobriety checkpoints. These strategic roadblocks are used in 39 states to catch drunk drivers. The legal test for sobriety checkpoints in Washington state was a result of efforts by the Seattle Police Department.

The effort began in the early 1980s after  then Seattle City Attorney Doug Jewett attended a conference on longevity and premature death at Virginia Mason Hospital. Jewett says he was inspired by a presentation from a group of researchers from Sweden. "Sweden had had the worst fatality statistics in Europe, maybe in the world, for drunk driving," Jewett said.

The  group reported that Sweden’s version of sobriety checkpoints not only helped combat the problem of drunk driving but made the country one of the safest places to drive.

Jewett got right to work. “The police department worked with the city attorney’s office," Jewette said. "We set up a series of sobriety checkpoints. And I began to think meaningfully about how to impact the whole psychology of drunk driving in the city of Seattle."

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The effectiveness of sobriety checkpoints is widely debated. But a 2002 Center for Disease Control study concluded that the number of alcohol-related crashes was reduced by 18 - 24 percent in states that implemented sobriety checkpoints compared to those that did not.

In Seattle, Jewett said well-publicized checkpoints were in place for the holiday season between 1983 and 1984. Over a six-week period more than 2,400 people were stopped.  There were 22 arrests for DUI, 99 people were charged with driving without a license, and nine people received other citations.

At the time Jewett called it one of the most satisfying decisions he’d ever made in his years as city attorney. “People began to really consciously think about what the consequences would be of being caught in a sobriety checkpoint," he said. "You know, all the rationalization in the world kind of got stripped away."

But despite increased attention on drunk driving, efforts to bring checkpoints back to Washington have not moved lawmakers according to State Representative Roger Goodman, D-Kirkland. "Almost every session I have sponsored or co-sponsored legislation to set up so-called sobriety checkpoints," said Goodman, "and each session we have been unsuccessful."

Every time I read another article or see another horrendous example of these head-ons with people with three times the blood alcohol allowable, it just makes me so sad that we don't have that available in this state.

Goodman is one of the architects of the new tougher DUI laws under consideration. Much of Goodman’s problem in passing checkpoint legislation is its inherent conflict with Washington state’s constitution according to University of Washington constitutional law expert Hugh Spitzer: "When you look at our article one section seven it has a very explicit protection for the right to privacy."

Spitzer said Washington has a long history of protecting the rights of citizens beyond what the US Constitution and US Supreme Court might allow. “Under the federal bill of rights, as interpreted by the US Supreme Court, the police can go through your garbage can and search for things," Spitzer said. "But in Washington state they can’t without a warrant. Your garbage can is treated as part of your castle, part of your house.”

Spitzer says a constitutional amendment would be the most effective way to revisit the issue. That would require the approval of two-thirds of the state legislature to be put on the ballot. 

Back in the 1980s a group of drivers who were caught up in the checkpoints who were not arrested sued the city. The court ruled in favor of the plaintiffs on the grounds that the checkpoint program was an unconstitutional infringement on motorists’ right to privacy.

The case made it all the way to the state Supreme Court and in 1988 the judges ruled random checkpoints to be unconstitutional in Washington state.

Two years later the US Supreme Court would rule that sobriety checkpoints were an acceptable infringement on the Fourth Amendment which protects citizens against unreasonable search and seizure.

Jewett remembers well his reaction to the high court ruling in Washington state. It still resonates with him today. 

“I thought it was outrageous," he said. "I thought it was going to result in the unnecessary deaths of thousands of people; and it has. Every time I read another article or see another horrendous example of these head-ons with people with three times the blood alcohol allowable,  it just makes me so sad that we don’t have that available in this state. "

Goodman said he didn’t even get a hearing on his checkpoint legislation last year. The bill he sponsored in 2009 received what he categorizes as withering treatment from constitutional experts.