ID checks viewed
as invasion of privacy

A high court appeal
challenges the policy at hearings
to revoke a driver's license

A man who temporarily lost his driver's license over a drunken-driving incident is challenging the way the state controls access to license revocation hearings, saying the requirement to show a photo ID and sign a log before entering is unconstitutional and tramples on people's right to privacy.

If Darcy Freitas is successful in his challenge, now before the Hawaii Supreme Court, the case could affect the dozens of administrative revocation hearings held each week and a handful of past revocations in which drivers objected to the identification system.

The state began using the photo and sign-in system in May 2001 as a way to prevent unidentified people from entering the inner areas, including hearing rooms, of the Administrative Driver's License Revocation Office on South King Street. The state's rationale: People would be less inclined to disrupt the hearings or engage in other inappropriate behavior if their identities were known.

Earle Partington, Freitas' attorney, said the system was established without any solid evidence showing its effectiveness and without any regard to privacy rights and the accused's constitutional right to an open hearing.

No other public hearing process in Hawaii's judicial system uses the ID and sign-in procedure, not even at the state's high court, Partington added.

Partington raised those arguments in asking the justices to overturn Freitas' 90-day license revocation, which was issued in 2002 and upheld by a District Court judge. Even though Freitas has his license back, the revocation still is on his record.

Partington noted that one person was denied entry into Freitas' original revocation hearing, and two were barred last month from a second hearing, all for refusing to show an ID card and sign the log. They were denied entry even though they were willing to be searched with a metal detector -- the standard method used to monitor people entering all other hearings in state courts, according to Partington.

The license revocation office, which is part of the state Judiciary, does not have metal detectors.

The American Civil Liberties Union, providing testimony in support of Freitas' case, said the ID and sign-up system raises concerns about public access to the courts, mainly because some people might be apprehensive about placing their names on a list maintained by the government.

And Michael Nakamura, retired Honolulu Police Department chief, testified that the system as a security measure is "not absolutely useless, (but) close to it."

If someone gets upset at a hearing, the fact that the person signed a log will not prevent him from losing his composure and becoming disruptive, said Nakamura, who testified as an expert witness for Freitas.

But state officials said the identification system has proved effective in other government and business settings and, because identities are recorded, can serve as a deterrent in ways that metal detectors and the presence of law enforcement officers cannot.

The state also disputed that Freitas' constitutional rights were violated, saying that the public has full access to the revocation hearings.

Moreover, the state says a litigant in a civil matter has no right to an open hearing, unlike defendants in a criminal case.

It also said the identification requirement is a reasonable security measure, imposes only a negligible incursion into a person's privacy and is far less intrusive than using metal detectors and X-ray machines, which often require people to empty their pockets or have the content of their handbags examined.

Critics say if the license revocation office is allowed to continue using the photo ID system, similar programs could be adopted by other government agencies, potentially discouraging more people from attending and participating in functions monitored in such a fashion.

"To allow the government to maintain this type of ID procedure at an administrative hearing is only a start," Lois Perrin, legal director for the ACLU in Hawaii, said in an interview. "It could spread elsewhere."

Partington said the state should consider installing metal detectors or implementing other measures even if doing so would be more costly.

"Anything that discourages public participation in government cannot be tolerated if there is an alternative means of achieving the interests of government," he said.

This is not the first time a Partington client has appealed a license revocation based on the ID system. In two previous cases in which Partington cited the same arguments, the Supreme Court dismissed those appeals in an unpublished decision, meaning the ruling cannot be cited as precedent for other cases.

Unlike in the previous cases, however, in June the high court ordered the revocation office to hold a hearing specifically on Freitas' objections to the ID system. At that hearing last month, Perrin, Nakamura and other witnesses testified on Freitas' behalf, adding to his arguments.

The state's witnesses included Ronald Sakata, head of the license revocation office and the official who started the ID program in 2001.

Jacqueline Kaneshiro, who presided over last month's hearing, subsequently ruled that the ID system was warranted, largely agreeing with Sakata's justifications, according to her written decision.

Kaneshiro determined that the system was the least intrusive way to achieve the government's desired purpose, was not linked to the content of information to be disclosed at the revocation hearing and did not impermissibly interfere with a person's right to a public hearing.

But Partington, in his appeal brief to the Supreme Court, argued that the hearing officer, who is employed by the license revocation office and is supervised by Sakata, generally ignored or diminished evidence that undermined her boss's arguments.

Sakata declined comment, citing the pending litigation.

Even though the license revocation office has been the target of bomb scares, threatening phone calls, angry letters and other incidents raising security concerns, no spectator has ever disrupted a revocation hearing, according to the state. About 10 hearings are held each workday.

While the Legislature appropriated money this year to install surveillance and monitoring equipment at the South King Street office, Sakata testified last month that the ID system will continue to be used until he is directed to stop it.