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The Honolulu Advertiser

Posted on: Wednesday, March 21, 2001

Island Voices
Driver legislation goes too far

By David Kraul
Adviser to Sen. J. Kalani English of Maui

In the rough and tumble of daily life, it is easy to take the U.S. Constitution for granted and lose touch with the essence of the very words that distinguish us from citizens of less fortunate lands.

The Fourth, Fifth and 14th amendments specifically protect every citizen from unreasonable actions by government agencies, but these protections are continuously challenged nationwide on our highways when law enforcement and citizens' rights seem at variance.

Racial profiling, for example, has become a major issue because it opens the door to arbitrary and capricious actions by police officers to apprehend suspicious drivers.

In recent weeks, five bills have been introduced in the state Legislature that revive the need for awareness of individual rights. One seeks to give added protection to police officers. The other four tend to impinge on the rights of Hawai'i's drivers.

All five serve as reminders that we are all guaranteed equal protection under the law, and that a balance must constantly be refined to this end, a major campaign tenet of Sen. J. Kalani English of Maui.

Senate Bill 848 would give stronger recourse to officers in disciplinary proceedings. Most important, perhaps, it would restore their Fifth Amendment right against self-incrimination. It is opposed by the State of Hawai'i and the Honolulu Police Department on the grounds that adequate protection is provided by collective bargaining. It is supported by the police union.

John Souza, a retired HPD officer with experience at the U.S. Attorney's Office, the Drug Enforcement Agency and the FBI, states his position in no uncertain terms: "Law enforcement officers deserve no less than the same complement of constitutional rights and protection that is provided to every member of this society, including those whom we may arrest and eventually try and incarcerate."

Souza points out that police officers are required to relinquish their Fifth Amendment right "for fear of losing their jobs. An officer who refuses to waive this right can and will be fired."

Senate Bills 1514, 1599, 1600 and 1606 were all submitted by request of constituents to Senate President Robert Bunda.

SB1514 is particularly onerous because it gives a police officer the authority to determine the type of test (blood or urine) in a traffic stop for driving under the influence. This bill would expand the definition of "drug" to include any chemical substance that impairs the driver.

The prosecuting attorney argues that some chemical substances, such as inhalants, are more easily detectable in blood than in urine, and a police officer should be allowed to determine what test is appropriate. It is important to realize that this bill would compel police officers to impose a test if there is probable cause.

Capt. Bryan Wauke of the Traffic Division says SB1514 "will send a message to drivers who continue to disregard the medical advice and warnings of their physicians."

The same argument is made in support of SB1600, which merely narrows the scope to testing for the effects of inhalants specifically, and the objections to both these bills are thus similar.

The public defender is concerned that broadening the definition of "drug" to include "any chemical substance" could affect people on medication for flu or high blood pressure.

The public defender is also concerned that SB1514 could be used as a "fishing expedition" for law enforcement when the intoxication status of a driver is uncertain.

SB1606 would simply allow the state to tack on an additional $100 fine for offenses involving DUI. Support for this bill is best summed up in the words of the Department of Transportation: "We like this bill because the source of additional funding for the Police Department's DUI programs will be from the offender."

SB1599 would allow police to arrest a driver who cannot, or will not, identify himself. The argument here is that police too often encounter drivers who wish to avoid the attention of police at all costs, i.e., fugitives, and want the authority to detain and identify such drivers as they see fit. An upstanding citizen who forgets his license at home might just have a problem with this one, and we are left with that nagging "What if?" question when the driver and the police officer do not care for the other's attitude and a harmless traffic stop becomes a nightmare.

Sen. English will continue to give these bills close scrutiny.