D.C. attorney general's office vows new timeline for restoring breath testing

Washington Post Staff Writer
Tuesday, March 1, 2011

The District's Office of the Attorney General pledged to deliver a firmer timeline for restoring a D.C. breath-testing program for DUI enforcement during a hearing Monday before D.C. Council member Phil Mendelson.

The promise came as Mendelson (D-At Large), who heads the council's Committee on Public Safety and the Judiciary, vented frustration that a year after inflated testing results were discovered in drunken-driving convictions, there still is no clear process for getting accurate machines back in service.

"This is quite disturbing," Mendelson said.

Deputy Attorney General Robert Hildum said that within 10 days he would lay out benchmarks for designing a new program. But Hildum also could not say when a functioning system would be in operation because the outside experts needed to design it were not yet hired.

Setting up a reliable program, Hildum said, was more complicated than duplicating procedures used elsewhere in the country, an assertion that Mendelson later questioned.

"Do people really get drunk differently in the District?" Mendelson said after the hearing.

On Feb. 4, Police Chief Cathy L. Lanier ordered officers to stop using breathalyzer tests and rely on urine samples in making drunken-driving arrests. Her directive was the second time in a year that D.C. police backed off breath-testing instruments.

In February 2010, a consultant hired by the police department revealed that the machines then in use had not been checked for accuracy, which allowed a programming error during calibrations to go undetected. Nearly 400 people were convicted of driving while intoxicated in the District between fall 2008 and last February, in cases that included the inflated test results. Defendants in half of those cases served some jail time, city officials said.

About 50 defendants affected by the inflated test results have asked to have their convictions vacated, according to the attorney general's office. About 22 lawsuits also have been filed against the District over the errors, Hildum said Monday.

The District replaced the old machines and revamped its procedures, but Lanier's order halted use of the new equipment and came within days of the termination of the consultant's contract with the department. The consultant had overseen new procedures.

Since last year, Hildum testified, prosecutors have used evidence including field sobriety tests to pursue cases and have not relied on breath-testing results. The "concept" that innocent people were arrested, Hildum said, "is simply unfounded."

When pressed by Mendelson, Hildum acknowledged that the lack of breath-testing results can impede prosecutions in which a breathalyzer score of .08 is enough on its own under District law to result in a driving while intoxicated conviction and, in some cases, mandatory jail time.

Also testifying at the hearing were two D.C. police officers who specialize in DUI arrests. The two contend that the department put them under internal investigation or denied them career advancement after they questioned problems with the old machines or declined to testify that the instruments were accurate, as they alleged prosecutors had asked.

The department said it cannot discuss personnel matters. The attorney general's office said in a statement that allegations that testimony was coached were "baseless."

Officials recently said that one officer under investigation for allegedly mishandling a urine sample in a nearly year-old case committed "no misconduct related to veracity or credibility," according to information relayed to the attorney general from the police department.

That officer's partner, who also was implicated in the sampling case, appeared before Mendelson. The attorney general declined to comment on the status of the investigation against that officer, citing a policy of not discussing ongoing investigations.

© 2011 The Washington Post Company