Tread carefully with Web site of DUI shame


POSTED: Monday, November 23, 2009

The Honolulu Police Department is risking a legal challenge by posting on the Internet the names and photos of drivers cited but yet to be tried on drunken driving charges. A partly similar posting by a New York county last year was found to be unconstitutional, but the brevity of the scheduled HPD site should put it on stronger legal ground.

HPD plans on Wednesday to launch the site consisting of the names and photos of people arrested and charged with drunken driving. The photos will include arrests Nov.15-21 and will remain online for 24 hours. For the next six months of what amounts to a pilot program, the 24-hour posting will include those arrested in the preceding Sunday through Saturday.

The police department's Scarlet Letter site, titled “;Oahu's Drunk Drivers,”; is aimed at discouraging people from taking the risk of being humiliated even before going to court. The initiative for public safety is commendable, particularly with the holidays coming. It is a bold—some will say brazen—move to discourage drunken driving.

New York's Nassau County launched its Web site, titled “;Wall of Shame,”; in May of last year but it was temporarily halted by a state judge five months later for denying due process of law to those pictured. Unlike Honolulu's planned site, the names and photos of those arrested in the Long Island county were posted on the Internet for an unlimited period.

The New York judge cited a U.S. Supreme Court ruling in concluding that “;something more than simple defamation”; by a government official or agency is necessary to reach what he called “;stigma plus.”;

In Nassau County, the judge concluded, the county's “;publishing and maintaining the petitioner's name, picture and identifying information embedded in a press release on the county's Internet Web site, which results in limitless and eternal notoriety, without any controls, is sufficient to be the 'plus' in the 'stigma plus' due process analysis in the case.”;

Tom Suozzi, the Nassau County executive, responded by limiting the Web site postings to those who had been convicted of drunken driving. He at first decided to appeal the ruling but dropped the appeal four months ago.

Following the New York court ruling , Suozzi credited Nassau County's Web site to a 47 percent decrease in alcohol-related fatalities for the year at that time. Drunken driving arrests actually increased during the five-month life of the Web site of those who had yet to stand trial, but he attributed that to increased police enforcement.

Of course, the Nassau County ruling is not binding in Hawaii courts, which put a high value on personal privacy. If the Web site is challenged at that level, HPD—not the arrestee—is likely to cite the New York judge's definition of “;stigma plus.”;

After all, HPD's planned 24-hour Web posting as a deterrent is a far cry from Nassau County's experiment of “;limitless and eternal notoriety.”;