D.C. DUI Bill: Against Legislation

Might create more problems than it fixes

The D.C. City Council voted Tuesday to relax the District's "zero tolerance" drunken driving law, which allows drivers to be prosecuted for minimal amounts of alcohol in the bloodstream.

Read the story: D.C. Council Votes to Ease No-Tolerance DUI Law (Post, Oct. 19)

D.C. City Council member Phil Mendelson (D-At Large) was online Thursday, Oct. 20, at 2 p.m. ET to discuss his reasons for voting against the emergency legislation.

Mendelson said the council was rushing through complex legislation that might create more problems than it fixes.

A transcript follows.

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Phil Mendelson: Good afternoon. Glad to be here to discuss the DUI legislation. More particularly, this will help me proceed with better legislation.

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Petworth, Washington, D.C.: Concilman Mendelson:

Thanks for taking my question.

My friends and their children were planning on visiting D.C. in the spring. They were really excited to try some of the trendy new restaurants in the District and both of them are wine connoisseurs. They're putting their travel plans on hold until they see what happens with the current law. Are you unconcerned with the effect that the law and the recent publicity will have on the tourism industry in D.C.? If you're not concerned, how will you convince the restaurant and hotel workers that there jobs are not in jeopardy because of the law?

Phil Mendelson: I am very concerned about how the law has been enforced. No one should fear that one or two drinks, especially with a meal and over the course of some time, will get them arrested. Every Council member has stated that we must address both police enforcement and the law.

Your friends should still come to DC. They'll enjoy it.

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19th & K St., NW, Washington, D.C.: While I understand the need to evaluate legislation thoroughly and come up with a permanent solution to this problem, don't you think that an immediate fix was necessary, even if it's not ideal? It seems that for the sake of the restaurants/bars in D.C., and for the sake of the many Washingtonians who may have a glass of wine or one beer over a meal or at a bar and then get nailed by overzealous MPD officers and literally see their lives potentially destroyed, an ASAP solution was critical.

Phil Mendelson: My concern is that hastily crafted legislation can create new problems. Indeed, the bill we passed did not actually address the DWI (Driving While Intoxicated) and DUI (driving under the influence)laws. Instead, the bill addressed a somewhat arcane statute dealing with evidence of intoxication. One of my concerns is that some of the press reports dealt with cases that did not go to trial -- therefore issues of evidence are irrelevant. I argued this week that we should take two weeks to develop carefully and comprehensively a legislative fix. In the meantime, the Chief of Police has assured me that he has instructed his commanders to exercise better discretion.

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Crofton, Md.: Can you give a statistic that gives the racial breakdown of DUI arrests in the city? I would be curious to know whether the enforcement of the DUI laws, especially the low-BAC law that is being repealed, is arresting black people more often than they are whites.

Phil Mendelson: The only statistic I have at hand is that during 2004 the MPD arrested less than 100 people with a blood alcohol content of less than 0.08%, and the vast majority of that number was in the 0.05% to 0.07% BAC range. Further, many of those arrested were also under the influence of drugs.

I do not have a racial breakdown. However, I will be holding a public hearing Wednesday October 26th at 2:30 p.m. to question both the police and the District government prosecutors.

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Washington, D.C.: Councilman Mendelson,

As an at-large member of the council do feel less pressure when voting for laws that negatively affect alcohol serving establishments than would a council member who directly represents a ward with a high percentage of restaurant business?

Phil Mendelson: The "pressure" I feel is that the arrests, as reported, are embarrassing, and I want to fix the law. I chair the Judiciary Committee, which oversees the police (who make the arrests) and the Office of the Attorney General (who prosecutes the charges). No one should be charged with drunkenness who is not drunk, and no one should be charged if the government does not intend to prosecute. I know some colleagues have talked about the effect on restaurant business, but that is a secondary issue.

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Washington, D.C.: The Council just doesn't get it. The public is outraged at the arrest and harassment of people for having one OR TWO drinks. The solution is to uphold the .08 law not to draw arbitrary new lines at .05! .08 provides a predictable and reasonable threshold. .05 is confusing and frankly TOO LOW. Why not just tell officers to strictly enforce .08 and get on with it?

Phil Mendelson: I think the Council does get it, that people should not be harassed for having one or two drinks.

Note, though, that alcohol can impair, at below 0.08%, if one is using other drugs -- something as innocent as cold medicine -- and the scientific evidence is that 0.08% is the "typical" threshold (typical body weight, typical food intake, etc.).

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Washington, D.C.: A bartender told me that wine has more alcohol levels than beers. Will this affect by the bill?

Phil Mendelson: You know, I don't really know. I think wine has more alcohol, but it is served in smaller quantities. The law speaks to alcohol level in the body, not the type of beverage being imbibed.

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Chevy Chase, Md.: Under the current law, as it is actually being applied by the DC police department, it would be foolhardy for anyone to take a car into the District of Columbia, have dinner and drink a glass or two of wine. While you may answer "only if you appear impaired to the arresting officer", do you think anyone is willing to entrust their professional future, or drivers' license, to the discretion of a D.C. police officer?

Phil Mendelson: I agree that a dui or DWI arrest can be harmful to one's professional future, which is why this issue is important. I do not agree that it would be "foolhardy for anyone to take a car into the District..." As I noted in an earlier response, there were less than 100 people arrested last year with a BAC below 0.08%.

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Chantilly, Va.: Can you further explain what you feel needs to be changed with the DUI and DWI laws?

Phil Mendelson: I think the critical problem is officer discretion. From the standpoint of public safety, we do not want anyone driving on the public streets who is impaired or reckless. Each of the circumstances I've read about has had two common elements: some reckless behavior (e.g., headlights not turned on, driving the wrong way on a one way street, using a hand-held cell phone) and admitting to having had a drink or two. I think the police officer should have focused on the reckless behavior and not brought alcohol into the charge. Thus, we need to examine the degree of discretion the law gives to the officer. That will be a focus at next week's hearing.

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Washington, D.C.: Is the subtext to this entire issue the concern that D.C. police were retaliating against late-night drivers in fancy cars who showed a little attitude?

Phil Mendelson: That's not my impression.

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Arlington, Va.: I find that the legislation passed was more a publicity stunt than an actual effort. The article I read in the Post was about one incident -- not an investigative piece about police mishandling of a law. I'm not saying that perhaps there might be some mishandling of the law, but the fact that an emergency legislation passes because of one white woman's experience seems a little weird.

Phil Mendelson: I absolutely agree that the rush to act -- it was a specially called meeting with less than 24 hours' notice -- was in response to the media. I argued we should take two weeks -- we will meet again on November 1st -- and act more carefully and thoroughly. In the meantime, I'm having a hearing on the matter.

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Anonymous: The previous poster has a very good point. Is .08, or .05 going to be the new law? The council needs to make this unquestionably clear. This vagueness is going to make the situation worse.

Phil Mendelson: The law is that at 0.08% blood alcohol content one is intoxicated. Period. Below that there is discretion whether one is impaired. What get's murky is at what point below 0.08 is the proof shifted, where one is presumed not under the influence of alcohol.

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Crownsville, Md.: Will this zero tolerance law be applied to all levels of society without discrimination; Congress, City Officials (mayor, City Council, foreign embassy employees?

Phil Mendelson: I am not under the impression that there has been any discrimination based on profession, economic status, etc.

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Tenleytown, Washington, D.C.: Are you concerned that delaying action now in favor of another bill could in effect kill any hope for a remedy? Also, has anyone contacted you in support of your position?

Phil Mendelson: No one has argued against getting the legislative fix done right. Nor do I have any sense that anyone is trying (or hoping) that "delay" as you put it will mean the issue goes away without being addressed. Further, I've heard concern from many people that we did not amend the statutes that the police are actually using to make these DUI/DWI arrests.

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Washington, D.C.: Part of the problem is the "discretion" that officers have to arrest someone with a very low alcohol content. This part of the problem could be fixed with better training. The officer who arrested Debra Bolton cited her "cockiness," which leads me to believe that he abused his authority to put a woman in her place. Why isn't the Council focused in this part of the problem?

Phil Mendelson: Thank you. Your point is precisely one of the major points I will press with the Chief at next Wednesday's hearing.

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Washington, D.C.: Well for those only 100 people their lives have probably been made miserable. Do you think had they been aware of this law that they would have driven into the city and had alcoholic beverages? So what you are saying is that you would recommend people drive into D.C. and have a drink with dinner and risk being put in jail by an over zealous police officer?

Phil Mendelson: What are you saying? I do not in any way defend what the government has done in some of these cases. Nor do I recommend continuing the past practices.

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Fairfax, Va.: Thank you for taking questions. I am pleased to see that the city seems willing to acknowledge an error in its law and enforcement policy (or incoherence thereof).

Have you considered making the law change retroactive to overturn convictions with BAC of 0.5 and below. I think the chronicles of those that have endured it compel such a response absent special facts.

Also, I was repulsed when I read that D.C. DMV automatically forces people who have been merely charged to have to undergo educational courses and other administrative penalties and remedies. Even if the administrator can act on a lower standard, I was not aware that an acceptable standard was merely being charged. Any thought to mandating that the DMV must have reasonable procedures based upon at least a preponderance of the evidence type of standard with right to a real hearing? Or just waiting until conviction? Also, if charges are dropped, the DMV must drop it (absent a real hearing with the officer testifying etc.)?

I am not familiar with other jurisdiction's approaches to this. I am also agree with the need to get drunk drivers off the road, but penalizing someone just for being charged strikes me as inconsistent with due process.

Phil Mendelson: I will look into the retroactivity.

I share your view about DMV's practices. That one could have the charges dismissed and still be required to suffer suspension or pay for educational courses is unfair.

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Washington, D.C.: Although this is unrelated, I think it is important. I think we are focusing our energy on the wrong issue. We have spent all this time and energy on enforcing the DUI laws and ignore the bigger issues. Why don't we have a "zero tolerance" policy on gangs and gang activity. Why isn't the RECO statute being utilized to prosecute entire gangs instead of each member individually as they commit crimes? That is how the mafia was all but disintegrated by Chertoff and Julian back in the day. Please advise. Thank you.

Phil Mendelson: I understand your point. We do have "zero tolerance" for instance gun free zones. And the Mayor has proposed legislation to establish prostitution free zones. As chair of the Judiciary Committee, I have to wonder isn't the entire District supposed to be gun free, and prostitution free? But, as a matter of public safety, we have to protect against DUI as well as violent crime.

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Washington, D.C.: Whether these arrests were the product of officers punishing people in fancy cars or something else, they are clear indications of very poor judgment on the part of the officer. As chairman of the Judiciary Committee, can you answer the question of why this incompetence continues to be accepted? You have mentioned "reviewing the levels of discretion," etc. Why have these incompetent officers not been fired?

Phil Mendelson: Well, this will be a subject of next week's hearing. Also, the committee will have a general oversight hearing on the police department on November 10th at 10:30 a.m. where there will again be an opportunity to look into police conduct.

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Washington, D.C.: Why do you perceive passage of the emergency legislation and more comprehensive future legislation to be mutually exclusive?

Phil Mendelson: In short, we did not actually address the problem. Because the emergency legislation adopted Tuesday does nothing to affect the statute the police have actually been using, and because it was drafted so hastily and without the opportunity for careful examination that we may have made mistakes like weakening the ability to enforce truly intoxicated behavior. I argued simply that we should take two weeks.

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Washington, D.C.: Phil,

I agree that legislation was needed, but what was the emergency? It seems that this should have been more carefully considered.

Phil Mendelson: I agree. But if you read these postings you will see that many people feel strongly we needed to act very quickly.

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Washington, D.C.: Many lawyers know the arguments: alcohol levels vary over time, and a person might have been legal when driving but the alcohol may have reached the bloodstream by the time the test was administered, etc. Haven't we let many DUI cases become duels of battling lawyers?

Phil Mendelson: Maybe, but the controversy is about police discretion, and that many of these alcohol-based arrests should not have been made in the first place.

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Washington, D.C.: Mayor Williams and others have stressed that "people who have a glass of wine with dinner will not be targeted." The perception is that erratic driving must be a factor to be pulled over in the first place. However, the sobriety checkpoints set up monthly west of Georgetown create a dragnet that stops everyone just passing through. I was a passenger in a vehicle that was stopped in a checkpoint in 2000, the driver was tested at .03 and subsequently arrested for violation of the zero-tolerance policy, despite the fact that his driving was never scrutinized. My question is, even if the tolerance is raised, will the law at sobriety checkpoints continue to prosecute drivers who otherwise have no reason to be stopped in the first place?

Phil Mendelson: Usually, checkpoints stop everyone to avoid issues about profiling.

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Washington, D.C.: Police officers often say that structured field sobriety tests -- and not breathalyzer results -- are the best indicator of "impairment" (especially for drivers who are under the influence of drugs). Yet, the council seems to be moving in the direction of taking away officer discretion and relying almost exclusively on the breathalyzer. What do you propose to do to maintain officer discretion in these cases? I am particularly worried about the police's ability to get drugged (as well as drunken) drivers off the road.

Phil Mendelson: Your question highlights the difficulty of a quick fix. How do we preserve officer discretion, particularly where impairment is due to a low level of alcohol combined with other (perhaps) legitimate drugs, but ensure that discretion is used judiciously?

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Phil Mendelson: Thank you so much for the questions. I'm sorry there was not enough time to answer everybody. Remember that there will be two public hearings on the police -- one specific to this issue next Wednesday, October 26th, at 2:30 p.m., and the other, a general oversight hearing, at 10:30 a.m. on November 10th. Contact the Council at 724-8000 for more information about these hearings.

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