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Posted at 12:18 PM ET, 06/01/2011

D.C. won’t have breath-test program for another year

District police and prosecutors will not have a reliable and accurate breathalyzer program in place until March, according to testimony Wednesday to a District Council committee.

Until then, officers will continue to rely on urine samples and roadside sobriety tests, such as walking and turning, to make their cases — a more expensive and cumbersome way to curb drunk driving.

The testimony came at a roundtable called by Council Member Phil Mendelson (D-At Large), who has pressed police, prosecutors and the Office of the Chief Medical Examiner to rebuild the battered breath-testing program.

The 2012 projection means the city will have gone nearly two years without one of the most basic policing tools. Errors and tainted court cases doomed the old system in early 2010, when officials acknowledged that testing inaccuracies from miscalibrated equipment had overstated drivers’ breathalyzer scores in about 400 convictions dating to 2008.

Deputy Attorney General Robert Hildum acknowledged at the hearing that the breath test program needs an overhaul and not the series of lesser fixes that have been put in place since the breathalyzer scandal.

A panel of outside national experts told city officials last October that top-to-bottom change was needed. But the procedures for bringing rigorous scientific review and management to the testing, maintenance and training processes still are being designed, testimony showed.

Hildum said prosecutors continue to get convictions and that urine testing had an unexpected benefit. With those tests, Hildum said, officers have found that 12 percent of drivers arrested for driving drunk also tested positive for PCP.

“It is a disturbing statistic,” and the finding “begs what we do going forward,” Hildum said.

The absence of a reliable breath test program has contributed to a roughly 42 percent drop in drunk driving arrests by District police — from 572 in the first five months of 2010 to 328 in 2011, according to statistics cited at the hearing by Kristopher Baumann, spokesman for the police union.

The deterrent effect also has eroded due to the turmoil in the system, Baumann said.

Assistant Police Chief Lamar Greene said that arrest figures he had with him at the hearing differed from the union’s but said he wanted to doublecheck his figures before giving them to Mendelson.

Mendelson said “it’s clear that drunk driving prosecution has stalled in the last year” and that the deterrent effect has been reduced. The delays mean that “basically government wasted a year” due to “bureaucratic inertia,” Mendelson said. “But at least now they are making some progress putting together a defensible program.”

Since 2010, District officials have repeatedly said they were working on a solution -- and had purchased $90,000 worth of new testing equipment to salvage its program. But the equipment has been idle for nearly a year, and testimony Wednesday showed that the city still does not have a guaranteed funding source to pay for its improvements.

The District is in the final stages of applying for a federal grant of about $130,000 to help with the overhaul and expects an answer “very soon,” Hildum testified.

The planned improvements described by Hildum would bring the District closer to the breath testing programs of Maryland, Virginia and many other states that give the responsibility a forensic science unit. The District’s Medical Examiner’s Office would take on that role and the grant would help hire a lab technician to assist with the added work load.

Mendelson oversees police matters as chair of the Judiciary Committee.

The flawed testing was uncovered in February 2010 by an outside consultant on his second day on the job for the Metropolitan Police Department. The consultant had been hired to replace an officer who had run the breathalyzer program for 14 years and moved to a new assignment.

After a false start at bringing back the breath testing machines, District Police Chief Cathy L. Lanier last February ordered officers to take urine sampling at drunk driving arrests. Urine samples cost about $75 each compared with less than $10 for each breath test — which total about 120 a month, police records show.

During the hearing, Lucas Zarwell, acting chief toxicologist at the Medical Examiner’s Office, said that urine testing is “an old way of doing things” and that alcohol levels registered through those tests “have very little correlation to blood concentrations for alcohol.”

As a result, Zarwell said that when he has testified over the scores in court, he has said that the score alone is not a measure of drunkeness and that it is better to also have those results supported by an officer’s observations about a driver’s behaviors that led to the arrest.

Hildum said the District has won convictions in “most” of the approximately 40 cases in which drivers returned to court to challenge convictions once they learned their cases involved erroneous scores. The cases relied on field tests and officers’ testimony, Hildum said.

This item has been updated.

By  |  12:18 PM ET, 06/01/2011

Categories:  Mary Pat Flaherty, The District

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