Alaska Authorises One Kind of Roadway Checkpoint, and It Is Not for Sobriety

Alaska legislated a checkpoint scheme once, and it is a homeland security provision rather than a traffic one. AS 26.20.100 sits in the state's homeland security and civil defense chapter and lets the department, in coordination with the Department of Public Safety and the Department of Transportation and Public Facilities, establish and operate checkpoints along private or public roadways serving critical property or facilities. Four limits are written into the same paragraph. The checkpoint may operate only at the direction of the governor, and only when the governor determines that a sufficiently high threat of enemy or terrorist attack exists to warrant the action. It may be run in conjunction with a roadway closure under AS 19.10.100. Signs must be posted so as to give advance notice, expressly so that people are afforded a reasonable opportunity to turn around without passing through. And its operation is limited to enforcing the closure or to reasonable inspection for weapons, explosives, chemicals, biological or biochemical agents, or other instruments capable of causing widespread severe injury. The section even preserves the right to carry through the checkpoint an amount of deadly weapons or defensive weapons reasonably justifiable for lawful use, so long as they are not prohibited weapons under AS 11.61.200.

None of that reaches drink driving. There is no other authorisation anywhere in the statutes. Searching every title for the drafting words a checkpoint statute would use returns nothing for roadblock, nothing for road block, nothing for check point as two words, and nothing for sobriety checkpoint, while sobriety itself appears only in AS 28.15.165, which is about administrative revocation after chemical tests, and in a therapeutic-court provision requiring 18 months of maintained sobriety.

The one general roadside stop Alaska does authorise is about equipment, not alcohol, and its purpose is written on its face. 13 AAC 04.006(a) lets a police officer with reasonable cause to believe a vehicle is unsafe or not equipped as required stop it and require inspection and tests, and 13 AAC 04.006(b) requires a driver to stop and submit the vehicle to a roadside inspection where an officer is conducting tests and inspections and a sign is displayed requiring a stop, or where a uniformed officer signals. The same subsection allows the sign to specify a class or type of vehicle, and provides that a driver of another class need not stop. That is a vehicle equipment inspection, and 13 AAC 04.007 confirms what the officer may do at it: issue a citation specifying the section violated and the repair required.

Alaska's actual impaired driving enforcement model is built on individualised suspicion at every stage. AS 12.25.033 permits a peace officer to arrest without a warrant, whether or not the offence occurred in the officer's presence, only where the officer has probable cause to believe the person committed the offence under AS 28.35.030 and only where the violation is alleged to have occurred less than eight hours before the arrest. AS 28.35.031(b) allows a preliminary breath test at the scene only where the officer has probable cause to believe the person's ability to operate is impaired by alcohol and one of three predicates is present: the vehicle was involved in an accident, the person committed a moving traffic violation, or the person was driving in violation of the open container statute AS 28.35.029(a). Each of those requires something to have already happened, which is the opposite of a suspicionless stop.

The consent Alaska does legislate is narrow and post-arrest. AS 28.35.031(a) treats a driver as having consented to a chemical breath test only if lawfully arrested for an offence arising out of driving under the influence, and the test must be administered at the direction of an officer who has probable cause. Before a preliminary breath test the officer must, under AS 28.35.031(c), advise the person that refusal may be used against them and that refusal is an infraction, and if the person refuses, the statute says the test shall not be administered. AS 28.35.031(h) preserves searches or seizures under a warrant issued by a judicial officer as a separate route.

Because there is no sobriety checkpoint authority, there is no checkpoint offence and no penalty for turning away from one. The refusal offences Alaska does have attach only after the statutory predicates are met.

Refusing a preliminary breath test under AS 28.35.031 is an infraction under subsection (e), and the Alaska Supreme Court's Administrative Rule 43.1 sets bail for AS 28.35.031(e) at $100. As an infraction it is capped by AS 28.90.010(c) at a $300 fine, and AS 28.90.010(d) confirms it is not a criminal offence and cannot lead to imprisonment or a jury trial.

Refusing the post-arrest chemical test is a different order of offence. Under AS 28.35.032(f) it is a class A misdemeanor, and AS 28.35.032(g) sets mandatory minimums: not less than 72 consecutive hours of imprisonment, an ignition interlock device for at least six months after the person regains the privilege to drive, and a fine of not less than $1,500 for a first conviction; not less than 20 days, 12 months of interlock and $3,000 for a second; and not less than 60 days, 18 months of interlock and $4,000 for a third. The officer must first advise the person that refusal will result in denial or revocation of the licence, that it may be used against them, and that refusal is a crime.

At a homeland security checkpoint under AS 26.20.100(2) the sanction is structural rather than penal: the checkpoint exists to enforce a roadway closure under AS 19.10.100, so the consequence of driving through is the closure offence rather than a checkpoint-specific charge, and the statute obliges the state to sign the checkpoint far enough ahead that a driver can lawfully turn around first. At an equipment roadside inspection under 13 AAC 04.006, refusing to submit the vehicle is itself prohibited by subsection (c), and a resulting equipment citation is an infraction under AS 28.90.010(c) with a $300 maximum fine.