D.C. to forgo breathalyzer testing for time being

By Mary Pat Flaherty
Washington Post Staff Writer
Tuesday, February 15, 2011; 10:40 PM

It probably will be four months before the District has accurate breathalyzer testing, acting Attorney General Irvin B. Nathan said Tuesday as he confronted the most recent turmoil over the city's drunken-driving enforcement.

In the meantime, officers and prosecutors will rely on urine tests in addition to field sobriety checks, Nathan said. The urine tests are much more expensive, costing about $75 each, compared with less than $10 for a breath test.

D.C. police test about 123 suspected drunk drivers a month, department records show. A federal highway grant will cover the extra cost of urine testing.

But the added expense, Nathan said, is needed to bolster confidence in a process that for a year has been battered by problems with accuracy. Last year, the city changed its model of breath analyzer after revelations that nearly 400 people since 2008 had been convicted of drunken driving based on erroneous test results.

How the latest machines bought by the District will be certified has not been determined, Nathan said. But his hope is that oversight would come from outside the D.C. police force, which has controlled the breath-testing program.

"We are committed to pursuing a drunk-driving prosecution policy that has integrity and reliability," Nathan said during a news briefing with Mayor Vincent C. Gray (D).

In deciding to forgo breath tests, Nathan affirmed an order sent Feb. 4 to all officers by Police Chief Cathy L. Lanier to stop using breathalyzers. On Tuesday, Lanier said in an e-mail that there is no specific deadline for having improvements in place.

"The key point is that I want to make sure we get it right," Lanier wrote.

Nathan also said his office expects to refile most of about 50 drunken-driving cases that had been dismissed since January over allegations that a pair of District officers improperly handled a urine sample in a case from March.

Until those allegations are resolved, cases handled by the officers - who accounted for at least one-fourth of drunken-driving arrests made in each of the past two years - have been dropped in court.

Nathan said evidence not connected to the urine tests could revive those cases "in the near future."

The police union formally protested the investigation, calling it retaliatory. The probe was opened in the summer 2010, months after one of the officers sent an internal e-mail last February asking whether there were problems with the breath-testing program.

Last February, an outside consultant working for the police discovered that the breathalyzers then in use had been programmed erroneously and had not been checked for accuracy. Those machines were inflating blood alcohol levels by about 20 percent.

Nearly 400 people had been convicted of driving while intoxicated since 2008, based on inaccurate results from those machines, and half of them went to jail, generally for at least five days.

In the District, a defendant can be convicted of driving while intoxicated - the most serious drunken-driving charge - based solely on a breath test showing a blood alcohol level of at least 0.08.

The city notified affected defendants but left it to them to contest their convictions.

Nathan suggested that control over breath-testing procedures might ultimately rest with the city forensic lab now under construction and set to open in fall 2012. An interim plan for ensuring quality will be designed in the next several months, Nathan said.

Bryan Brown, a defense lawyer specializing in drunken-driving cases, said outside review and transparency are "absolutely critical to the integrity of the whole justice system," which has had "interested parties overseeing the accuracy of evidence. . . . It's been the fox guarding the hen house."

Police union leader Kristopher Baumann remained skeptical of the new review saying, "how is it possible that we are the only jurisdiction that can't properly administer breath tests and why can't the attorney general explain the problem?"

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