Montgomery County State's Attorney Douglas F. Gansler said his top deputy will continue to prosecute the county's highest-profile cases and to have access to a county car, despite the drunken driving charge filed against her.
Gansler said Katherine S. Winfree's arrest Saturday night by a police officer who spotted her county car moving unusually slowly on a Bethesda road, and her subsequent refusal to take a breath test, will not prompt disciplinary action unless she is found guilty.
"She has not been convicted," Gansler said. "I'm a believer that we should wait for the criminal process to work. Upon the resolution of this case, we will evaluate whether any further action would be appropriate."
For Winfree, it may be some time before all the implications of her arrest become clear. Her case has been sent to Frederick County for further investigation, and her attorney said yesterday that Winfree had a reasonable, and lawful, explanation for the way she was driving, namely that her tire went flat late at night.
But Gansler's handling of the matter is already under scrutiny.
"I think he's going to have to take some immediate action," Montgomery County Executive Douglas M. Duncan (D) said yesterday. "I'm confident he'll take strong action. I mean, what kind of message does it send to the public to have a prosecutor refusing a Breathalyzer test?"
The problem, Duncan said, is that Gansler has waged a high-profile campaign against drunken driving and aggressively promoted a measure that would let police compel drivers to take breath tests.
"He's been very outspoken on the issue," Duncan said. Gansler has long argued that drivers sometimes use their right to refuse a breath test as a way to sidestep prosecution.
Gansler said that Winfree's arrest should in no way reflect on him and that once he sent the case to Frederick, he had done everything he needed to do.
But legal experts and local politicians said the case has left Gansler a tangle of ethical and political questions, many of which he addressed in an interview yesterday.
Gansler, for instance, said he foresaw no need to adjust Winfree's caseload, which typically does not include drunken driving cases. Instead, she handles more serious criminal cases -- including last year's prosecution of a man who killed a Catholic priest and her recent involvement on the sniper task force.
He also said he was not worried that her selection of a well-known local defense lawyer, Paul F. Kemp, would create a potential for future conflicts of interest. F. Patrick Kelly, former chairman of the Montgomery County Bar Association's criminal law committee, said it might, unless Winfree agreed to recuse herself from future cases involving defendants Kemp represents.
Gansler acknowledged that some prosecutors Winfree supervises could be called to testify against her, since she was with her colleagues at a large holiday party in Gaithersburg immediately before her arrest.
"But if people have to testify, then they testify," Gansler said. "Prosecutors are going to do the right thing, if it gets that far."
As for her continued use of a county car, Gansler said he had no problem with that. But Duncan, who controls the Montgomery fleet, said he is checking to see how the county has handled other instances of an employee being arrested while operating a county-owned vehicle.
John Kudel, a Rockville lawyer who is the immediate past president of the bar association, said Winfree should not be precluded from doing her job, even if convicted of the driving offense. To do so "would be an overreaction," he said.
County Council member Steven A. Silverman (D-At Large) agreed, adding that he hopes political pressures will not affect the way Gansler treats his top deputy.
"She clearly can't get any special treatment," Silverman said. "But by the same token, I don't think she deserves unduly harsh treatment just because of her position."
Winfree's attorney said it was appropriate for her to drive "under the circumstances."
"She has a flat tire, she's a single woman driving on a road near to her home," Kemp said. "Certainly to me, it's not . . . evidence that she's under the influence of alcohol."