Sober = Drunk in Washington, DC
I’m quite in favor of cracking down on DUI, but this story from the Washington Post is really disturbing:
Debra Bolton had a glass of red wine with dinner. That’s what she told the police officer who pulled her over. That’s what the Intoxilyzer 5000 breath test indicated — .03, comfortably below the legal limit.
She had been pulled over in Georgetown about 12:30 a.m. for driving without headlights. She apologized and explained that the parking attendant must have turned off her vehicle’s automatic-light feature.
Bolton thought she might get a ticket. Instead, she was handcuffed, searched, arrested, put in a jail cell until 4:30 a.m. and charged with driving under the influence of alcohol.
Bolton, 45, an energy lawyer and single mother of two who lives in Alexandria, had just run into a little-known piece of D.C. law: In the District, a driver can be arrested with as little as .01 blood-alcohol content.
As D.C. police officer Dennis Fair, who arrested Bolton on May 15, put it in an interview recently: “If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C. We have zero tolerance. . . . Anything above .01, we can arrest.”
Neither the police department nor the attorney general’s office keeps detailed records of how many people with low blood alcohol levels are arrested. But last year, according to police records, 321 people were arrested for driving under the influence with blood alcohol levels below the legal limit of .08. In 2003, 409 people were arrested. . . .
Fair acknowledged that many people aren’t aware of the District’s policy. “But it is our law,” he said. “If you don’t know about it, then you’re a victim of your own ignorance.”
It strikes me as outrageous that people who are clearly not intoxicated (the national BAC limit is .08) are being arrested and charged with DUI. But what follows is even more troubling:
Not many people fight the charge, said Richard Lebowitz, another defense lawyer, because the District offers a “diversion program” of counseling for first-time offenders.
“If diversion is offered and accepted, there’s a guarantee that the charges will be dropped,” Lebowitz said. “If you go to court and try to prove your innocence, it’s a coin-flip. So most people choose diversion.”
Bolton didn’t. She balked at the $400 fee and the 24 hours of class time required to attend the “social drinker” program.
The system seems designed to encourage people just to accept a dubious criminal charge that would not stand up in court because fighting the charge can be more costly and time-consuming than just paying the fine and attending the class. Bolton decided to fight it as a matter of principle and hired a lawyer:
Since what she refers to as her “unfortunate incarceration,” Bolton has spent hours in D.C. Superior Court and at the DMV and $2,000 so far fighting the DUI charge. Her refusal to submit to the 12-week alcohol counseling diversion program has sent her on a “surreal” odyssey.
Twice, after hours of waiting, prosecutors told her that they had lost her file and that she would have to come back.
On Aug. 22, after four court appearances, prosecutors dropped the charge. But she spent all of September battling the DMV to keep her driving privileges from being suspended for three months.
Corey Buffo, the DMV’s general counsel, explained that the agency drops its procedures only after a case goes to trial and is dismissed on its merits. “Our burden of proof is lower” than the Superior Court’s, he said. “Not enough evidence for them may be enough evidence for us.” Yesterday, the DMV decided not to suspend her privileges and issued her a warning instead.
This strikes me more like a form of extortion than a well-functioning criminal justice system.