Technicality may void Pasco DUI checkpoint arrests

NEW PORT RICHEY — Even though signs alerted drivers to what was ahead, not to mention the looming glow of flashing lights, authorities say Johnny Karnow rolled up to a DUI checkpoint in December reeking of weed. A report states that when asked if he had any marijuana in his car, Karnow, 32, exclaimed:

"I just smoked some!"

He was one of 61 people arrested or given citations for various charges that night. Karnow, charged with DUI and possession of marijuana, which he had stored in his trunk, pleaded no contest in April and suffered the penalties: Nine months probation, 50 hours community service, a six-month revocation of his driver's license, DUI school, court costs, fines.

Then on Thursday, he got it all erased.

"It feels good," he said as he left the New Port Richey courthouse to smoke a victory cigarette.

Karnow's good fortune happened because of a small but crucial technicality — one that could cause all of the other dozens of cases from that DUI checkpoint to also be voided.

The checkpoint's protocol stated every third car was to be stopped. That's not what happened, said Jason Sammis, a Tampa defense attorney for John Rodgers, another man charged with DUI that night. He pointed to the video recorded by one trooper's patrol car at the DUI checkpoint.

"Our expert witness counted nine of 12 cars pulled into the checkpoint," Sammis said. He filed a motion stating the checkpoint wasn't valid. His client's charges were dropped, opening the gateway for others, such as Karnow, to follow suit.

Assistant Public Defender Darrin Johnson said the State Attorney's Office "has agreed to allow the defendants to withdraw their plea and enter a not guilty plea." Then the cases will be dismissed.

The State Attorney's Office did not return a call for comment.

The checkpoint was a massive affair, with 1,034 vehicles stopped. Of the 61 people cited for infractions, such as driving with a suspended license, not having insurance or driving a car with faulty equipment, six people were arrested on charges of DUI.

The checkpoint began at 8 p.m. Dec. 16 on U.S. 19 near Marine Parkway and continued till the wee hours of Dec. 17. It was organized by the Florida Highway Patrol with the assistance the Dade City and New Port Richey police departments, the Pasco County Sheriff's Office and Highway Patrol volunteers.

Agencies have to be very careful when planning and executing checkpoints because, by definition, they are not constitutional, said J. Larry Hart,a partner at the law firm Carlson, Meissner, Hart & Hayslett. He is not currently representing clients in these cases.

The Fourth Amendment of the U.S. Constitution gives citizens "a right to be free of unreasonable searches and seizures," Hart said.

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A checkpoint stops people without a reason — such as noticing an expired tag or a car weaving all over the road. This is why agencies have to create protocols to be followed to make sure people are detained fairly, like FHP's policy to stop every third vehicle.

Officers "can't decide they are going to randomly stop somebody because they want to," Hart said. "There needs to be some sort of objective criteria that can be applied in a neutral and detached way so that none of us are subject to the whims and the moods of law enforcement."

The importance of the Fourth Amendment is so great that all checkpoints have to be publicly announced in advance and motorists are given warnings on the road so they can avoid it.

Sgt. Steve Gaskins, spokesman of the FHP, said the agency hasn't determined which officer, trooper, deputy or volunteer violated protocol because it's too difficult to see on the video.

"This was an inadvertent error," Gaskins said.

When Sammis, the defense attorney, first questioned the validity of the checkpoint, the State Attorney's Office had supervisors from all the agencies involved sign affidavits saying they weren't aware of any "deviation" from the protocol. Gaskins said the FHP supervisors signed these with sincerity, as they didn't know anything had gone wrong until the video was seen.

"The long-term outcome is unfortunate," Gaskins said, "even though six impaired drivers were taken off the road that night."

Charles H. Rose III, a law professor at Stetson University College of Law, agreed that those arrested or cited could possibly get their charges dropped.

"If I was one of those 61 people," he said, "I would find myself a lawyer and at least look into it."

Times researcher Carolyn Edds and staff writer Alex Orlando contributed to this story. Erin Sullivan can be reached at esullivan@tampabay.com or (727) 869-6229.