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Judge tosses December DUI charge from Dade City checkpoint

DADE CITY — Late at night on the Saturday before Christmas, 43-year-old Luis Alberto Salas-Delgado pulled up to a traffic checkpoint near Pasco High School on State Road 52. The Dade City Police Department was stopping all eastbound traffic.

Salas-Delgado, driving a red Ford pickup, had a valid license and all the lights on his truck were working. But the officer in the checkpoint noticed that Salas-Delgado's eyes were bloodshot and he smelled moderately of alcohol, court records say.

Salas-Delgado performed field sobriety exercises, which the officer said he performed poorly. Later, at the jail, Salas-Delgado took a Breathalyzer test that registered 0.108 and 0.109 — above the threshold for a DUI arrest.

But last week, Pasco County Judge Robert Cole tossed out all the evidence against Salas-Delgado, finding the facts of the arrest weren't quite what they seemed. After viewing the video footage from the arrest, the judge said Salas-Delgado performed one sobriety test "as well as it can be done."

What's more, Cole found that prosecutors failed to show that the requirements for a checkpoint to be legal — and they are many — were not met.

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The Fourth Amendment to the U.S. Constitution, which guards against unreasonable searches and seizures, comes into play when talking about checkpoints.

"The Fourth Amendment doesn't want cops to be able to just pull somebody over without lawful basis to do it," said Dade City attorney Chip Mander, who represents Salas-Delgado. "We have a right to travel unrestricted unless they have a sufficient basis to stop us."

So higher courts have laid down strict rules for how traffic checkpoints can be executed so as not to violate people's rights.

Law enforcement agencies have to notify the public of the time and location of checkpoints. They have to post signs and even provide escape routes for drivers to turn off the road before entering the checkpoint.

"You can't trap people," said Dade City police Chief Ray Velboom.

He said he relied on checkpoint plans used by the Florida Highway Patrol and Pasco County Sheriff's Office to conduct the checkpoint on Dec. 18.

He said he sent out press releases to local media; the St. Petersburg Times ran a brief article Dec. 17 stating the checkpoint would be happening the following night.

• • •

When he was pulled over, Salas-Delgado acknowledged that he'd had a couple of drinks. But Mander argued that even that — combined with the odor of alcohol and the glassy eyes — does not imply impairment.

What Salas-Delgado didn't display was slurred speech, dilated pupils, or an inability to listen or follow directions.

As for the checkpoint plan, Mander said it doesn't just have to be legal — the state had to prove it was legal.

Yet at the hearing, no photographs of "checkpoint ahead" signs were introduced as evidence. The officers who testified named two different roads as the established escape routes. And nobody clipped that newspaper story proving the public was notified.

The judge at one point told prosecutor Matthew Parrish, "It's up to you, the government, to present evidence to show that the checkpoint is valid."

Parrish argued that the officer had a "reasonable suspicion" when he first encountered Salas-Delgado that he might be dealing with a drunk driver. And after the field sobriety tests, Parrish said, there was good reason to arrest Salas-Delgado on a DUI charge based on the totality of the circumstances.

The judge disagreed, ruling in favor of Salas-Delgado. The state has filed a notice it intends to appeal.

Unless they prevail with a higher court, Mander said, the case "would absolutely be dismissed. They have no evidence apart from this."

• • •

Velboom, the police chief, is left wondering what his officers did wrong. They arrested seven other people in the checkpoint that night, all for traffic infractions such as invalid driver's licenses. After the clock struck 11 and the checkpoint had to cease, the officers hit the streets and caught one other person driving drunk.

Velboom wants to continue doing checkpoints, and he wants them to hold up in court.

He urged prosecutors to appeal Cole's ruling.

"Obviously DUI is a big crisis, and we're trying to address it and we're trying to be creative," he said. "I think we followed all the rules."

Molly Moorhead can be reached at moorhead@sptimes.com or (727) 869-6245.

Judge tosses December DUI charge from Dade City checkpoint 03/05/11 [Last modified: Saturday, March 5, 2011 1:46pm]

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