The Arkansas attorney general's office is seeking to reverse a Court of Appeals decision earlier this month that invalidated a 2012 driving while intoxicated arrest because the sobriety checkpoint associated with the arrest was unconstitutional.
On Tuesday, state attorneys asked the Court of Appeals for a rehearing of the court's Dec. 9 decision and petitioned the Arkansas Supreme Court to review the case.
Judd Deere, a spokesman for Attorney General Leslie Rutledge, said Rutledge doesn't want to hamper law enforcement efforts to keep the roads safe.
"The attorney general believes that the Court of Appeals' ruling requires police to jump through more red tape and bureaucracy in order to conduct sobriety checkpoints, which are critically important to keep all Arkansans safe," Deere said.
The ruling was prompted by the September 2012 arrest of Jeremy Whalen at a sobriety checkpoint on Interstate 540 near Fort Smith.
Whalen was convicted of DWI in 2014 but appealed, arguing that the roadblock by Arkansas State Police was illegal.
In his opinion, Court of Appeals Judge Waymond Brown found that the evidence that Whalen was intoxicated while driving was obtained at an "unconstitutional checkpoint" and was therefore tainted. Whalen's conviction was reversed.
Roadblocks are subject to the Fourth Amendment of the U.S. Constitution, which protects citizens from undue searches and seizures.
Brown noted in his opinion that checkpoints are allowed by the Constitution but their invasive nature has to be offset by a compelling public interest. Roadblocks also must involve a supervisor in the field and a formal plan that limits the discretion of officers.
Whalen's attorney, John Collins, argued that there was no neutral, formal plan for conducting the alcohol searches. Multiple troopers testified that they had broad discretion over when and how to run sobriety checkpoints and that supervisors didn't need to be there for officers to run one.
"While the plan is not required to be written, there must be a plan. Officer testimony appears to belie the notion that there was a plan," Brown wrote. "There was no supervision over the checkpoint, and there was no limitation on the discretion of the officers in the field. Furthermore, while only a factor and not a requirement, the officers' failure to record how many vehicles they came in contact with beyond those ticketed or arrested prevents any possible determination on the effectiveness of the checkpoints."
In the petition to the Supreme Court to review the case, Assistant Attorney General Rebecca Kane and the state's solicitor general, Lee Rudofsky, argued that the Court of Appeals' opinion was fraught with legal error and a misunderstanding of precedents.
"The Court of Appeals' errors have the potential to hinder and impair law enforcement work across the state," the attorneys wrote. The Court of Appeals opinion "misconstrued this Court's precedent ... and improperly imposed novel, constitutionally unnecessary, and burdensome restrictions on the sobriety checkpoints. Viewed in its proper legal and factual context, the routine checkpoint at issue did not give too much discretion to rank-and-file officers, but rather was conducted in a neutral way according to a routine plan."
In their request for a rehearing with the Court of Appeals, Kane and Rudofsky argued that state troopers followed the agency's policy and procedures, and that a senior officer at the stop was a supervisor and there was no abuse of discretion.
"This Court's legal conclusions that Corporal Lee was not a 'supervisory' officer for purposes of the balancing test and that the role played by his superiors was not enough supervision threaten to impose unrealistic and unnecessary burdens on police throughout the state," they wrote. "The level of supervisory participation apparently required by this decision would require either a severe reduction in the number of sobriety checkpoints or a significant reallocation of supervisory resources from other law enforcement protection activities."
On Wednesday, Collins said he was told that state attorneys were likely to challenge the ruling, but he was still surprised.
"The thing that shocks me ... I thought [the Court of Appeals ruling], on the basic federal law, it's the proper decision. It's very clear ... I don't think there was any ambiguity there at all," Collins said.
Collins said he hoped the ruling would discourage roadblocks, which he believes are unjust and inefficient in stopping drunken driving.
"The state police in Michigan did a study many years ago ... and found that routine patrols stop more DWIs than roadblocks," he said. "Roadblocks are just great political fodder. You get more drunks off the street when you target drunk behavior. Roadblocks stop everybody."
Metro on 12/31/2015