Police cannot stop a car simply because the driver turned off a highway to avoid a drunken driving roadblock, the Hawai'i Supreme Court has ruled.

In a 4-1 decision addressing the issue for the first time in Hawai'i, the majority held that the practice violates drivers' constitutional rights against unreasonable seizures and invasions of privacy.

The decision comes at a time when law enforcement has been stepping up the drunken driving roadblocks, and the case produced a fierce debate between Associate Justice Simeon Acoba, who wrote the 47-page majority opinion, and Chief Justice Ronald Moon, the lone dissenter who wrote a 25-page response.

The ruling makes clear that the legality of roadblocks is not an issue. Rather, it deals with the practice of stationing officers near roadblocks to catch drivers who take evasive actions to avoid getting caught.

Acoba wrote that the high court is not ignoring the importance of combating drunken driving, and he emphasized the decision does not undermine the legality of roadblocks. But he said the court cannot allow the erosion of state constitutional protections.

In dissent, Moon wrote the high court's decision establishes a rule that police may never stop cars that intentionally avoid a drunken driving roadblock. He wrote the decision "effectively abrogates our state's compelling interests in protecting the safety of the public and combating intoxicated motorists."

The decision likely will affect law enforcement practices on the Neighbor Islands, where police use what is known as "chase cars" to track down vehicles that avoid roadblocks. Honolulu police do not use that practice.

"It has not been a problem because most of the roadblocks we've had are at key locations where it's very difficult for (drivers) to veer off," Honolulu Police Chief Boisse Correa said.

CALIFORNIA TOURIST

The high court's ruling issued this month essentially throws out the drunken driving conviction of a California visitor on vacation here.

Raymond Heapy, 56, an Alhambra, Calif., resident who owns a vitamin and health store, turned off Mokulele Highway on Maui before a drunken driving roadblock at about 6:30 p.m. on June 16, 2004, according to the court's decision.

A Maui officer stationed as the "chase car" saw Heapy's 2004 Ford Mustang convertible turn right onto the quarter-mile long Mehameha Loop.

Although the officer did not see the driver violate any traffic laws, the officer followed the Mustang and stopped the car because he felt he had "reasonable suspicion" based on the driver avoiding the roadblock, the court's decision said.

The officer indicated that he had been assigned as the "chase car" about 20 times and he stopped about 40 cars trying to avoid the roadblocks. In each case, the driver was drunk, had an outstanding bench warrant or was violating the law in other ways, such as not having insurance or a driver's license, according to the officer.

Heapy, whose wife also was in the car, told the officer he was lost, according to the decision, but he was arrested on a drunken driving charge.

His blood alcohol content was .083, just above the .08 legal limit, according to his lawyer, Michelle Drewyer.

The visitor was found guilty after he pleaded no contest, although he reserved his right to appeal. He was fined $150 and had his driver's license completely suspended for 30 days and partially suspended for another 60 days, allowing him to drive to and from work. The sentence was stayed pending the outcome of the appeal.

EVIDENCE THROWN OUT

The high court's decision threw out all evidence gathered after Heapy was stopped, effectively gutting the drunken driving prosecution.

Acoba wrote the officer only had suspicions that the driver was trying to avoid a roadblock, not that he was driving drunk.

"The mere possibility of criminal activity does not satisfy the constitutional requirement that a stop be based on suspicion 'that criminal activity was afoot,'" Acoba wrote, citing language from prior Hawai'i court cases.

Moon wrote the officer had a reasonable basis to stop the car. He pointed out Mehameha Loop was surrounded by cane fields and blocked off by a metal gate.

The decision does not necessarily mean that police cannot track drivers who avoid roadblocks, but indicates the officers need more reason to stop the cars. Those reasons could include an officer observing drivers weaving, speeding or violating other traffic laws. Maui police could also locate the roadblocks — as Honolulu police do — at locations that do not give motorists a chance to legally avoid them.

Maui Deputy Prosecutor Peter Hanano said county officials were obviously disappointed by the ruling.

"We're going to advise the police to do whatever they have to do to comply with the decision," he said.

Kaua'i and Big Island police and prosecutors also indicated they will abide by the ruling.

'THE RIGHT DECISION'

Heapy's attorney hailed the ruling as "the right decision." Drewyer said after her client had spent the day snorkeling with his wife, they got lost, turned off the highway and had been looking at a map before they were stopped.

"He had no idea where he was going," she said.

Heapy wanted to challenge the conviction because he felt strongly his constitutional rights were violated, Drewyer said.

"I think the stop was unconstitutional and I think we need new standards," she said. "Hawai'i courts have not looked at this issue before, so it's helpful for everyone."

Associate Justice James Duffy joined in Acoba's decision. Associate justices Steven Levinson and Paula Nakayama filed a separate one-page concurring opinion.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.