D.C. reviewing DWI charges; accuracy of breath results in doubt

By Mary Pat Flaherty
Washington Post Staff Writer
Sunday, March 7, 2010

The equipment that D.C. police use to test for drunk drivers has given inaccurate results and District officials have begun a review of all DWI charges brought between October 2008 and February to look for questionable results, Attorney General Peter Nickles said.

It is not known how many cases will be affected or how officials will resolve those that have already been adjudicated. The problems are with the equipment that tests a driver's breath for blood alcohol content.

Nickles and Police Chief Cathy L. Lanier had previously said that they suspected problems with the equipment but released few details to the public, defense attorneys or their own officers about what led to their probe.

The department also will replace its old breath testers and retrain officers on a new system, according to an e-mail sent Friday to D.C. officers.

Moreover, internal memos obtained by The Washington Post, as well as interviews, show that D.C. police supervisors were alerted to systemwide trouble with the machines' accuracy and had explored remedies at least two weeks before the department made the issue public Feb. 26. Then, officials would say only that they had "recently become aware of a potential problem with the accuracy of its alcohol Intoxilyzer machines." That language later was repeated in identical releases from Nickles's office and the office of Mayor Adrian M. Fenty (D).

In mid-February, prosecutors began dropping DWI charges in court -- but kept pursuing related drunken-driving charges on the same cases -- without detailed explanations to defense attorneys, some of whom were weighing plea offers for their clients, according to another e-mail and interviews with five attorneys.

Nine of the 10 machines in use by District police are under scrutiny, according to Nickles, who said problems arose when their motors were replaced beginning in October 2008 and the machines were not correctly recalibrated. The equipment was adjusted last month, Nickles said, "but until we know they are perfect, we are reluctant to charge DWI. We feel we can be comfortable about perfection in a day or two."

Nickles said he cannot predict how many previous convictions might have been affected: "It may be hundreds; it may be tens of cases. We won't know until we complete our review," which he said would take several months.

The investigation would not affect the most serious cases, including those involving accidents, injuries or death. In those cases, blood or urine is tested, making the breath tests moot.

Nickles said the District also will begin replacing its Intoxilyzer 5000 machines with Intoximeter, a system used by U.S. Park Police in the District. The District has owned several Intoximeters for at least three years but has not deployed them, court records show.

Central to DWI cases

Breath test results are central to DWI cases. In the District, a driver can be convicted of DWI based solely on breath results that show blood alcohol concentrations above 0.08. No field sobriety tests are needed, unlike in cases of driving under the influence.

The DWI charge carries a mandatory five-day jail sentence for drivers with blood alcohol concentrations of 0.20 or higher -- a provision that makes test results more crucial, several defense attorneys noted.

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