Sober = Drunk in Washington, DC

wine2.jpgI’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.

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9 Responses

  1. KipEsquire says:

    The problem I have with your analysis is the “clearly not intoxicated” part. She drank and drove — that is not in dispute. She was driving recklessly (i.e., headlights off at 12:30am) — that is not in dispute.

    Exceeding the BAC is a sufficient condition, not a necessary condition, for intoxication. Stated differently, having a BAC below the theshold should not be treated as a safe harbor from a DUI arrest.

    There is no right to “just two beers” or “just one glass.”

  2. Paul Gowder says:

    Kip: but was she in fact intoxicated? I’ve driven with my headlights off (i.e. forgetting to turn them back on after getting gas) on days when I haven’t consumed alcohol for a week. This sounds like a bite of pear flambe would be sufficient to arrest.

    How do you prove intoxication without the defendant having a BAC above the threshold? Reliably?

  3. KipEsquire,

    I certainly agree that it would be fine to charge her with driving recklessly. My concern is with charging her with DUI when it doesn’t appear that she really was driving under the influence. While I agree that “having a BAC below the threshold should not be treated as a safe harbor from a DUI arrest,” the DC approach strikes me as opening the door to a kind of wrongful arresting and charging of people with a serious offense that they are not guilty of because they know most won’t fight the charge.

    Of course, there are rare cases where people with BAC’s below .08 could be too intoxicated to drive, but I’m reluctant to leave too much to the cop’s discretion.

    There are more facts about the case in the article which I didn’t include, but they seem to indicate that the cop didn’t like the woman’s attitude, and that’s why all this happened. Of course, these are based on her allegations, but there’s evidence that the cop didn’t give normal sobriety tests as well as evidence that a .03 BAC really is too low to cause impairment.

    I’m generally not a bright-line rules kind of person, often arguing in favor of muddier standards, but this time, I do think that brighter-line rules might be better.

  4. Ugh says:

    This is ridiculous. The drunk driving laws in this country have basically done away with due process.

  5. UPDATE: The Washington Post has an follow-up article today about the DUI arrest policy. From the article:

    Officials with organizations that lobby for safe roads and tough drunken driving laws yesterday criticized the District’s zero-tolerance policy toward drinking and driving, saying that they’d never heard of it and that limited police resources should be devoted to those more obviously drunk.

    Even D.C. Council member Carol Schwartz (R-At Large), who has sponsored legislation to lower the legal limit for drunken driving, said she was not aware that police officers are arresting drivers who have as little as .01 percent blood alcohol content — less than from drinking a glass of wine or beer — in their systems. Nor did she think that such a policy was a good idea.

  6. Dave! says:

    “Driving Recklessly” is in dispute (unless headlights out is part of a reckless driving statute, it may be, but I suspect it’s just a warning in most places.) If you live in a major metro area, it is *very* conceivable that you would never notice that your lights were out… even at 12:30am, due to the light pollution of a city. My lights make *no* difference on most streets in my city, 24 hours a day…

    …and I’m a very large man. I could drink a glass of wine and probably not register on a blood test. There isn’t a right to a “I just had two beers” excuse, but there’s also a difference between consuming a drink and not being impaired and consuming many drinks. The .1 limit is probably not designed to keep the roads safer (as evidenced by the “Diversion Program”) it’s probably designed to generate revenue from people who opt to pay the fine over being labeled “DUI”.

  7. Randy Hurst says:

    This is an issue I’ve been concerned about for some years. The issue is supposed to be driving while impaired, because impairment puts others at risk. But the standard has nothing to do with impairment, it has to do with drinking. There are tests that can check if you can operate, react, and observe – i.e., if you are mentally or physically impaired – but nobody uses them. In fact, as this story proves, the police don’t care whether you’re impaired or not. The law is quite literally nothing more than an excuse to fine people for doing absolutely nothing wrong. Same thing goes for random drug testing of department store employees, truck drivers, and others. It’s the authoritarian personality at work. Enforcement for enforcement’s sake alone.

  8. eh says:

    And don’t forget that in Virginia if you have a beer in a bar you can be thrown in jail for public intoxication.

    “According to Virginia statutes and the Virginia Department of Alcoholic Beverage Control (ABC), any place with a liquor license is considered a “public place.” Accordingly, police are allowed free access to such places, and, should they find any customer over the legal alcohol limit of .08 or suspect a customer of being intoxicated while still being served or present in an establishment, police can write that person a ticket for public intoxication”

    I wonder if the Maryland bars will see a business boom?

  9. Update on Sober = Drunk in Washington DC

    Earlier this week, I wrote a post on how people can be arrested for DUI even when they have a BAC well below the legal limit of .08. The Washington Post article I blogged about sparked a considerably public outcry,…