Court Considers Challenge to Roadblocks

Times Staff Writer

A La Crescenta woman who was the first person arrested on suspicion of drunk driving at a California Highway Patrol holiday roadblock is challenging the arrest.

Denise Kell, 27, claims that her constitutional right to protection from unreasonable search and seizure was violated when she was arrested at a CHP "sobriety checkpoint" at Foothill Boulevard and Pennsylvania Avenue in La Crescenta.

The hearing, which began Friday in Glendale Municipal Court, is scheduled to continue before Judge J. D. Smith this afternoon.

Although arrests involving police department roadblocks have gone to court, Kell's case is the first resulting from the CHP program. The roadblocks, conducted in four areas of the state, were operated for the first time by CHP officers from Dec. 14 to Jan. 1 in an effort to discourage driving while under the influence of alcohol. Fifty-three people were arrested statewide at the CHP roadblocks.

The Glendale hearing is a result of a motion filed last month by Kell's attorney, J. Michael Flanagan, to suppress evidence obtained at the roadblock on the grounds that Kell was stopped without probable cause.

That evidence includes results of field sobriety tests conducted at the roadblock. Kell's blood-alcohol content measured between .10 and .12 when she was arrested, Flanagan said. The legal limit is .10.

Constitutional Issue

"The major question is, is the judge going to find an exception to the need for probable cause to stop someone?" Flanagan said in an interview. "There was no probable cause, and without probable cause, the Constitution says there will be no search and seizure."

Without evidence gathered at the roadblock, Flanagan said, the district attorney's office won't have a case against his client.

At Friday's hearing, Deputy Dist. Atty. Chesley McKay presented testimony by Lt. Phil Downs, who was in charge of the CHP's Glendale-area roadblock. Downs testified about procedures used by CHP officers at the roadblock, where motorists were stopped at random and officers conducted 15-to-30-second checks for signs of intoxication, such as slurred speech or the smell of alcohol on the breath.

McKay played a videotape of the roadblock to show the court the "reasonableness" of the CHP's undertaking. The prosecutor contends that the roadblocks are not unconstitutional. "The government's interest in protecting the general public from drunk drivers outweighs the minimal intrusion into Fourth Amendment rights," McKay said.

Of 1,025 motorists stopped at the La Crescenta roadblock on Dec. 14, Kell was the only one to be arrested on suspicion of drunk driving. Seven arrests were made at CHP roadblocks in the Glendale area during the holiday season, the CHP said. Other CHP roadblocks were set up in Sacramento, Bakersfield and Redding.

2 Earlier Cases

In two municipal court cases involving similar roadblocks conducted by police in San Diego and Anaheim, the procedure was found to be unconstitutional. The Anaheim case, which was decided two weeks ago, is being appealed, McKay said, adding that his office would appeal if the court rules against the La Crescenta roadblock.

Sobriety checkpoints have come under attack by the American Civil Liberties Union on the grounds that they violate the Fourth Amendment clause against unreasonable search and seizure.

The ACLU has filed a petition with the state Court of Appeal in San Francisco to stop the roadblocks. A decision by the court is expected this spring, said Joan Howarth, an attorney with the Southern California chapter of the ACLU.

Howarth said cases being heard in municipal courts probably won't have much impact on the appellate court decision. But, she said, "while we're waiting for the appellate court decision, the lower court decisions will be a signal to law enforcement agencies that they should concentrate on getting drunk driving arrests that will stick."

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