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DC's zero-tolerance policy towards driving

You can get pulled over in DC if you drink one glass of wine with a meal, and drive two hours later? Who knew?

Cause THIS is going to help the DC tourist trade. What do you want to bet that to a certain extent this has to do with DC raising money through tickets. It does however shed new light on my being pulled over last October after leaving the club.

From the Washington Post:Glass of Wine Immerses D.C. Driver in Legal Battle


Glass of Wine Immerses D.C. Driver in Legal Battle

By Brigid Schulte
Washington Post Staff Writer
Wednesday, October 12, 2005; Page A01

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.

Although low blood alcohol arrests have been made in other states in conjunction with dangerous driving, lawyers, prosecutors and advocates of drunken driving prevention said they knew of no place besides the District that had such a low threshold for routine DUI arrests. In Maryland and Virginia, as in other states, drivers generally are presumed not to be intoxicated if they test below .05. Nationwide, .08 is the legal limit -- meaning a driver is automatically presumed to be intoxicated.

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."

Bolton said she didn't know. But defense lawyers who practice in the District do.

"Even one drink can get you in trouble in D.C.," said Thomas Key, a lawyer who successfully defended a client who had a blood alcohol level of .03. "They might not win a lot of these cases or prosecute them, but they're still arresting people."

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.

"I think it would have been fine if I'd done something wrong, but I didn't," she said. "I had a glass of wine with dinner."

Instead, she hired a lawyer. In August, after Bolton made several fruitless appearances in D.C. Superior Court, prosecutors dropped the DUI charge. But then she had to battle the D.C. Department of Motor Vehicles, which warned that it would suspend her driving privileges at the end of this month unless she went through an alcohol prevention program.

As Bolton remembers it, it was early morning May 15 and she had barely gone a few hundred yards before she was pulled over on K Street NW. The officer, Fair, asked her whether she realized the headlights on her Acura MDX sport-utility vehicle were off.

"Oh, man, am I going to get a ticket for this?" she remembers saying to him jokingly.

Then he asked her whether she'd had anything to drink.

"Not really," she said. And when he asked her again, more firmly, she answered that she'd had a glass of wine with dinner at Cafe Milano.

He asked her to recite the alphabet. In his report, Fair wrote that he had asked her to start at the letter D and stop at X. Bolton said she thought he had asked her to stop at S and tossed off the alphabet quickly and accurately to S.

As a result, Fair noted in his report that she had "jumbled" it.

Then he asked her to get out of the car.

Fair asked her to walk a straight line and then stand on one foot to the count of 30. He looked into her eyes to check for jerkiness. Bolton, dressed in black silk pants and a pink shirt, took off her pink high heels to be more sure-footed. She said she thought she had aced the tests. "All that yoga really paid off," she thought.

But in the police report, Fair wrote that she swayed as she walked and lost her balance -- which Bolton disputes. He told her she was under arrest.

Why?" Bolton remembers saying. "I passed all your little tests."

On his report, Fair wrote that Bolton failed 10 indicators of sobriety. But James E. Klaunig, a toxicology expert at Indiana University's medical school who for 12 years oversaw the state's drunken driving testing, said that such a determination was scientifically improbable.

"There's no way possible she failed a test from impairment with a .03" blood alcohol level, Klaunig said. "And reciting the alphabet is not an acceptable way of measuring impairment, according to the National Highway Traffic Safety Administration."

Fair, who said he does not comment on individual arrests, noted in his report that Bolton's attitude was "excited," "carefree" and "cocky."

"I was sort of laughing," Bolton said. "I look back and wonder, was I cocky? Did I have an attitude? Well, yeah, because I was sober, so I thought it was all so ridiculous."

Fair handcuffed her. Bolton said she was terrified. Until then, her only brush with the law had been a ticket for speeding in a 15-mph zone in 2002.

At 1:08 a.m., at the 2nd Police District station, Fair asked Bolton to blow into the Intoxilyzer 5000. It read .03.

"See?" she remembers saying.

He had her breathe into the machine one minute later. Again, .03.

"See?"

But Fair told her D.C. law was on his side.

On the department's Web site, D.C. police explain it this way: "Technically, according to the D.C. Code, the District of Columbia has a zero tolerance for driving under the influence. If a person 21 years of age or older has a blood alcohol concentration of .02 percent [to] .04 percent and extremely bad driving, this person can be placed under arrest for Driving Under the Influence of an alcoholic beverage."

At low levels of alcohol, an arrest comes down to an officer's discretion, said D.C. police Inspector Patrick Burke, former head of the traffic division.

Fair, he said, has 15 years of experience and averages more than 100 drunken driving arrests a year and is well qualified to make the call. In 1998, Fair arrested Marlene Cooke, wife of the late Washington Redskins owner Jack Kent Cooke, for drunken driving after she piloted her Land Rover through Dupont Circle without the headlights on. She refused a breath test but was later convicted.

"I always say the safe bet, if you drive, is not to drink at all," Burke said. "But even looking from a D.C. tourism standpoint, we'd be killing ourselves if we were saying you can't go out and have a glass of wine with dinner. That'd be ridiculous. So we tell people, you have to know your limits."

Bolton sat in a jail cell until 4:30 a.m. As she left, Fair told her he had given her a warning, not a ticket, for driving without headlights. She walked the few blocks to Wisconsin Avenue NW, caught a cab to her car on K Street and drove across the bridge to Virginia. There, she said, she pulled over and cried for 45 minutes.

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.

After so many months, Debra Bolton is just glad it's over. "It's lunacy," she said. "I'm all for limits on drinking and driving. Whatever the rules are, I will abide by them. I just didn't know these were the rules."

These days, Bolton goes out to eat in Virginia. And she keeps a yellow sticky note on her steering wheel to remind her to make sure her headlights are on.


From the Washington Post: Critics Say District's DUI Policy Goes Too Far


Critics Say District's DUI Policy Goes Too Far
Jailing Drivers for 1 Drink Called Wasting Resources

By Brigid Schulte
Washington Post Staff Writer
Thursday, October 13, 2005; Page B01

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.

"I think that laws have to be reasonable," she said. "And I do believe that one glass of wine should certainly not an arrest make."

Lon Anderson, public and governmental affairs director for the American Automobile Association's Mid-Atlantic Office, said he planned to work toward putting an end to the zero-tolerance arrests. "This zero tolerance is out of order, out of bounds and outrageous," said Anderson, who said he also had never heard of it. "This means that, Heaven forbid, I could go to a Nats or Redskins game and have a beer and a dog and my career would be over."

The Washington Post reported yesterday that Debra Bolton, a 45-year-old energy attorney and mother of two who lives in Alexandria, was searched, handcuffed, fingerprinted and arrested after drinking a glass of wine with dinner in Georgetown last May. A breath test indicated her blood alcohol level was .03, comfortably below the .08 legal limit at which drivers are automatically presumed intoxicated. She sat in a jail cell for hours and later spent months fighting in D.C. Superior Court before the charge was dropped.

A number of motorists yesterday said they have had similar experiences. One young computer programmer said he spent the night in a D.C. jail on a drunken driving charge even though the breath test registered his blood alcohol content as 0.0 percent.

The zero-tolerance policy requires that police have a reason to pull the driver over in the first place -- for example, for poor driving, or in Bolton's case, for driving without headlights. In Maryland and Virginia, as in other states, drivers generally are presumed not to be intoxicated if they test below .05. In all three jurisdictions, .08 is the legal limit.

Elizabeth Wingo, chief of the criminal section in the D.C. Attorney General's Office, said her office prosecutes cases regardless of blood alcohol level, as long as there is sufficient evidence of impairment.

"We have zero tolerance for drunk driving. It doesn't matter what your blood alcohol level is," Wingo said. "If you blow .02 and officers can tell you're impaired, you'll be arrested for DUI."

The law says people can be found guilty if they drink enough alcohol "to appreciably disturb or interfere with their normal mental or physical faculties."

But D.C. Police Chief Charles H. Ramsey, in an interview yesterday with WTOP radio, said the department has no policy of getting tough on people who drive below the legal alcohol limit.

"Officers bring discretion to everything they do," Ramsey said, "so there is no order from above saying that every minor infraction of the law must be upheld."

Patrick O'Connor, president of Northern Virginia's Mothers Against Drunk Driving, said his group lobbied for years to get all 50 states and the District of Columbia to lower the legal limit for intoxication from .10 to .08. He said the only zero-tolerance law MADD has pushed is for young drivers under the legal drinking age of 21 -- which all 50 states and the District subsequently adopted.

"MADD's position is that you should drink responsibly and if you feel you're impaired, you should not drive," he said. "It's not MADD's position that if you have a glass of wine you shouldn't get into a car."

John Undeland, chairman of the Washington Regional Alcohol Program, with members as diverse as Anheuser-Busch and MADD, said his group's members agree that the greatest problems are drivers who are profoundly drunk and those who repeatedly drive drunk. "That's where resource-stretched law enforcement agencies need to focus their resources," he said.

Neither the D.C. police nor Superior Court prosecutors keep detailed records of low-blood alcohol arrests as a result of the zero-tolerance policy. But records do show that several hundred drivers each year are arrested for driving with blood alcohol lower than .08 percent.

This year, Annie Cefaratti, along with Debra Bolton, will be one of those statistics. One Tuesday night in August, she recalled, the 44-year-old real estate agent and Reston resident had a glass of wine with dinner at Sette Osteria, with a big bowl of pasta and espresso. Two hours later, as she drove home in her black Mercedes SUV, she quickly picked up her cell phone to answer her son's call.

The District bans use of handheld phones while driving, and she was immediately pulled over, she said. An officer asked if she'd been drinking. When she said she'd had a glass of wine with dinner, he asked her to get out of the car and put her through a series of sobriety tests. A breath test measured her blood alcohol at .04. She was handcuffed and arrested. Her case was later dropped, she said, because the officer never filed the paperwork. Now, the District's Department of Motor Vehicles wants her to either get alcohol counseling or prove she doesn't need it.

"I'm D.C.-born and -raised. My family goes back six generations here," she said. "And I'm never going to have another drink in D.C."

D.C.'s zero-tolerance policy goes back about seven years. In 1998, at the same time Schwartz introduced an amendment to lower the blood alcohol limit for intoxication from .10 to .08 with much media attention, then-Council member Sandy Allen introduced a provision that lowered to .03 the level that a driver could be presumed impaired by alcohol. Both measures passed.

Staff researcher Bobbye Pratt contributed to this report.

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Comments

( 1 comment — Leave a comment )
psycocavr
Oct. 14th, 2005 01:18 pm (UTC)
this REALLY brings up legal questions
If you are 'convicted' of DUI by being .01 (universally accepted as sober) then you are being 'convicted without trial.. ie no due process. I wonder when this one will get to the high court.

There has already been a VA judge who says dui convictions are violations of due process because you are 'onsite convicted' and 'punished'.

Wonder where this will go.

Alan
( 1 comment — Leave a comment )

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