D.C. Police Chief Charles H. Ramsey yesterday defended officers who arrest drivers with blood alcohol levels below the legal limit, and amid growing criticism of the department's "zero tolerance" policy, he insisted that officers continue to be able to use their discretion.
"We do have a policy that if a person is driving a motor vehicle and appears to be impaired in any way, then they can certainly be charged and tried for driving under the influence," Ramsey said. "It's in the judgment of the arresting officer."
Still, for the second day, some D.C. Council offices were swamped with angry calls and e-mails, aides said, about the police department's little-known zero tolerance policy for drinking and driving. Council staff members are investigating just what the policy is and what law gives the police the authority to enforce it. Some council members said they will look into ways to address the broad latitude the policy has given arresting officers.
One officers who has made such arrests, Dennis Fair, said D.C. law gave him the authority to arrest drivers with as little as a .01 blood alcohol level. "If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C," Fair said in an interview. "We have zero tolerance."
In May, Fair arrested Debra Bolton, a 45-year-old energy lawyer and single mother of two who lives in Alexandria, after she said -- and a breath test later confirmed -- she'd had a glass of wine with dinner in Georgetown. Fair pulled her over after she left a parking garage without her headlights on.
But Ramsey said yesterday that Fair's characterization of the law was "inappropriate."
"He's wrong if he's saying that," Ramsey said yesterday. "It's not coming from me, and that's certainly no policy I've instituted. That's just incorrect."
Ramsey said he does not use the term "zero tolerance."
"I don't like it and I don't personally use it because I don't think it adequately describes much of anything," he said. But until a Washington Post article about Bolton's arrest appeared Tuesday, the D.C. police department's Web site said: "Technically, according to the D.C. Code, the District of Columbia has a zero tolerance for driving under the influence," and an adult driver with a blood alcohol level as low as .02 and "extremely bad driving" could be arrested.
The term "zero tolerance" has since been removed from the site.
According to the D.C. Code, a driver with a blood alcohol level of .08 or more is considered legally intoxicated and can be arrested and charged with driving while intoxicated. A driver with a .05 blood alcohol level can be arrested and charged with driving under the influence.
Two separate provisions in the code, however, might be what police officers use to justify zero tolerance, council aides investigating the issue said yesterday. An amendment passed in 1998 states that drivers with "less than .03" percent blood alcohol will not be presumed not intoxicated. In most states, drivers are presumed not intoxicated below .05 -- the level at which alcohol impairment begins, according to most scientific research.
Another part of the code reads, in part, that no one "under the influence of any intoxicating liquor . . . [shall] operate or be in physical control of any vehicle in the District."
Ramsey said the important issue in drunken driving arrests is not the blood alcohol level but the level of impairment.
"I know people could have one-half of one drink and get very giddy. I know other people who could have an entire bottle and you'd barely know they've had a drink," he said. "To think you can have a threshold that can apply to everyone is foolish. We're all different. We all handle alcohol and other substances differently. I don't think you can ever take away judgment and discretion."
But Bolton and a number of others who have come forward with similar stories have begun to question the judgment of some officers.
One Thursday night two years ago, computer software worker Lamon Lyles, then 27, remembers following a friend out of a parking garage next to Club U and into a gas station, going the wrong way on a one-way street. They were pulled over and asked if they'd had anything to drink. Lyles said he'd had one Heineken because the next day was a workday. The officer gave him and his friend field sobriety tests and then had them blow into breath machines. Both, he said, registered 0.0 blood alcohol.
But Lyles was not released. He said that the police officer told him about D.C.'s zero tolerance policy. You drank one, Lyles recalls the officer telling him, so you're over the limit.
Lyles and his friend were kept overnight in a D.C. jail and taken to court to be arraigned at 9 a.m. There, he said, within two minutes, both cases were dropped. Lyles, who said the arrest prevented him from getting a top clearance to work at the National Security Agency, spent a year trying to clear the incident from his record.
D.C. Council member Phil Mendelson (D-At Large), chairman of the committee with oversight of the police department, also questioned the officer's judgment.
"How can you flunk a sobriety test with no alcohol in your system -- unless the officer didn't know what he was doing or had another agenda," he said. "I certainly will make some inquiries."