WAILUA, Hawaii (KHON2) — A tip from the Centers for Disease Control and Prevention (CDC) led to the arrest of a Kauai couple on Nov. 29 when they landed on the Garden Isle after boarding a plane in San Francisco knowing they were COVID positive. They had been told by airport quarantine station officials to stay in San Francisco. Always Investigating looks into how were they able to fly, and what are the legal implications?

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This case is the first of its kind on Kauai, with the CDC in California notifying local police after the couple disobeyed an airport quarantine station order not to fly.

According to the Kauai Police Department (KPD), 46-year-old Courtney Peterson of Wailua and 41-year-old Wesley Moribe of Wailua tested positive for COVID before their scheduled Nov. 29 flight from San Francisco to the Garden Isle. Police say the two were told to isolate by San Francisco airport officials, but refused and flew to Kauai where they were arrested just hours later.

“Once the couple arrived at the Lihue Airport, they were identified and contacted by KPD personnel who escorted them to a designated isolation room for further processing and investigation,” Kauai Police said in a statement.

Assistant chief Mark Begley said the CDC gave the warning. KHON2 asked United Airlines how were they able to board, despite a CDC quarantine station order not to?

“Prior to traveling, all United customers are required to complete a ‘Ready to Fly’ checklist acknowledging they have not been diagnosed with COVID-19 in the last 14 days. We are investigating this matter further to assess these passengers’ ability to fly on United in the future.”

United Airlines Dec. 2 Statement

After being taken into custody at the airport, they were booked for reckless endangering in the second-degree at the Lihue Police Station by officers wearing gloves, protective gowns and combination mask- and-safety-shields.

Mugshots were taken outside as a precaution. They both posted bail of $1,000 each. A 4-year-old child traveling with the couple was released to a family member and Child Protective Services was notified.

The couple chose not to make a statement to police, and have not yet responded to share their side of the story with KHON2.

KPD Police Cheif Todd Raybuck said, “We continue to request visitors and residents alike to follow the Governor’s Emergency Rules and take all necessary precautions to prevent the spread of COVID-19.”

A spokesperson for Mayor Derek Kawakami’s said he stands by the police statement.

According to Begley, “This is the first time that KPD was able to establish probable cause for a reckless endangering arrest,” involving COVID-19.

Kauai Prosecutor Justin Kollar told Always Investigating the couple has a court date in January and he will file a misdemeanor complaint.

“If you have positive COVID results please don’t even think about getting on a plane and going anywhere,” Kollar said. “We have no tolerance for anyone putting our residents in danger of this virus.”

Always Investigating also asked legal experts for their take on the unprecedented move.

“This would be a very unusual application of reckless endangering, and I think prosecuting a case like this would have certain challenges,” legal expert Doug Chin said. “Any crime in the state of Hawaii all the way from murder to something just like stealing a candy bar from a store requires proof of person’s state of mind, and so I think that’s actually a very relevant thing.”

Others point out the act in question — boarding the plane — took place in California.

“Kauai doesn’t have jurisdiction, this isn’t their case,” defense attorney Victor Bakke said. “It also could be a violation of federal law by endangering an aircraft and its crew, and if so that would be dealt with by the federal government and the federal courts here. Kauai is just taking the moral high ground really saying, hey, you guys should have never got on the plane, which there’s an argument for that, but that is not a crime that Kauai can enforce.”

Health officials say no one should be flying knowing they are COVID-positive.

“National CDC requirements — this isn’t unique to Hawaii or Kauai — are that if you are tested positive, confirmed to have COVID-19, you are required to be in isolation for 10 days,” said Dr. Janet Berreman, Kauai District health officer for the State Department of Health. “Clearly getting on an airplane is not consistent with being in isolation. So this was in very clear violation of national guidelines and any local health department guidelines in the country.”

There is no exception for wanting to get home first and isolate then.

“To be very, very frank for our travelers and our residents who are traveling, one of the risks of traveling in this environment is that you may end up having to stay somewhere days to weeks longer than you plan to stay,” Berreman said, “and if that is not something that you can work into your plans if you need to, then it’s really advisable not to travel.”

We asked United Airlines if others on the same flight will be notified for contact tracing purposes, they responded: “We follow the direction of governmental health authorities, including the CDC, who make the determination whether or not to contact anyone who was in close contact with someone who has tested positive.”

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