PORTSMOUTH, N.H. (AP) – A Portsmouth District Court judge dismissed driving while intoxicated charges against five people arrested at sobriety checkpoints, after finding the stops were unconstitutional.

Judge Sharon DeVries said city police failed to give seven days’ advance notice that they would be conducting the checkpoints, making the random searches and seizures illegal.

She cited two state Supreme Court rulings and sobriety checkpoint guidelines issued by the state Attorney General’s office that say advance notice and “aggressive public information efforts” are essential to making the checkpoints effective and legal.

The court and the attorney general’s office said that’s because publicity about roadblocks – not the checkpoints themselves – is the chief deterrent to drunken driving.

City police asked a Rockingham County Superior Court judge to approve the checkpoints on July 5. The judge approved the petition July 7 and the roadblocks started operating the next day, the ruling said. The only advance publicity was a news release sent out July 7 and a newspaper article that appeared the day the roadblocks went up.

“The state could have postponed the checkpoint date,” DeVries ruled. “It failed to do so.” Because of that, police “failed to follow through with an essential element of a constitutionally permissible checkpoint plan,” she wrote.

Rockingham County Attorney Jim Reams said he would ask the Attorney General’s office to appeal the ruling and argued that DeVries was wrong to rely on the attorney general’s guidelines.

“They’re guidelines, not mandates,” he said. “Nowhere is (advance publicity) constitutionally required.”

Reams’ office had asked DeVries to recuse herself from hearing the drunken driving case against Michael Hunt, 50, of Berwick, Maine. County prosecutors argued DeVries was biased because, during a related hearing, she had expressed disapproval of police checkpoints. Hunt’s case was among those dismissed Monday.

There were five more arrests at the checkpoints for driving while intoxicated, two drug possession charges, three operating after suspension charges and one driver taken into protective custody.

“I’m sure we’ll be hearing from the others,” Reams said.

AP-ES-12-01-05 0201EST