New Hampshire DWI checkpoint case in high court

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By Elizabeth Dinan
edinan@seacoastonline.com

CONCORD -- Arguments for and against so-called sobriety checkpoints were presented to the state's highest court Tuesday, with debate largely focused on whether Portsmouth police provided "aggressive advanced publicity" prior to establishing New Hampshire DWI roadblocks on July 8 and 9, 2005.

The court's decision will affect the outcome of five underlying driving-while-intoxicated arrests made during the roadblocks, as well as state and perhaps national law. A decision is not expected soon, but Supreme Court Chief Justice John Broderick Jr. offered a glimpse into his thinking on the subject of publicizing sobriety checkpoints in advance.

"I live in Dover, and I don't know anything about the checkpoints," said Broderick during arguments supporting the roadblocks, as presented by Assistant Attorney General Nicholas Cort.

Cort told the NH Supreme Court justices that case law says advance publicity enhances the effectiveness of DWI roadblocks, but is not a requirement. The assistant AG argued that Portsmouth police faxed press releases announcing the roadblocks in advance of the 2005 checkpoints and one newspaper published the announcement the afternoon the first one was held.

"That's aggressive advanced publicity?" the chief justice asked Cort, referencing a petition presented to Rockingham County Superior Court by Police Chief Michael Magnant, seeking permission for the roadblocks. Magnant's petition, approved by the superior court, promised "aggressive advanced publicity" by notifying numerous news agencies.

"We submit it is," said Cort, adding police cannot "compel the media" to publish notices and the court can not mandate that police pay for legal notices guaranteeing publication.

Cort said several New Hampshire police departments have begun purchasing legal advertisements in newspapers to announce upcoming DWI roadblocks, pending the Supreme Court's decision. The Portsmouth Police Department has not.

Broderick said the point of advanced publicity is to deter "bad behavior" and asked how it can be deterred "if nobody publishes notice before they exist?"

Associate DWI Justice James Duggan asked Cort if Rockingham Superior Court was aware of the one-day advance notice before approving Portsmouth's 2005 DWI checkpoints.

Cort told the justices it did "inferentially."

Arguing on behalf of the five defendants arrested at the Portsmouth checkpoints, New Hampshire DWI attorney Mark Stevens said "one single blurb in a single newspaper in another town" is not adequate advance publicity. The notice was published in a newspaper distributed largely in Dover, noted Portsmouth District Court Judge Sharon DeVries, who dismissed the five DWI cases due to a lack of advance publicity.

"If they promised it was going to be advertised, it should be publicized," Stevens told the Supreme Court.

Duggan said since roadblock-like searches "are not ordinarily allowed" under the Constitution, "notice has to be adequate to give people a choice."

Stevens -- whose private law practice has the e-mail address www.byebyedwi.com -- told the court DWI checkpoints are not effective and are unconstitutional.

"You can't stop everyone in hopes of finding a drunk," he said.

Stevens initially represented Jennifer Dahlen, then 23 and of Durham, who was stopped at the July 9, 2005, roadblock on Maplewood Avenue. According to court records, Dahlen needed assistance walking at the time of her DWI arrest and her blood alcohol level was .13, or 60 percent over the legal limit. Her case was dismissed by DeVries in 2005, as were the DWI cases of four other people arrested as a result of the 2005 roadblocks -- one alleging a second DWI offense.

According to court records, three others arrested for driving under the influence of alcohol during the 2005 roadblocks pleaded guilty to reduced non-DWI charges.

Funded in part with a New Hampshire Highway Safety Department grant, the checkpoints were manned by officers from five police agencies, who stopped 514 vehicles over two days and made 11 arrests -- including the eight for DWI charges.