D.C. officers say peers now wary of making DUI arrests

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Local,DC,Ben Giles
Two District police officers testified under oath at a D.C. Council hearing Monday that officers are now hesitant to make DUI arrests with the police department's alcohol breath-test program in disarray.

The city, meanwhile, is at least several months from restoring the alcohol breath tests, putting officers and the District's attorney general at a disadvantage when prosecuting drunk drivers.

Officers testified that the attorney general's office kept officers in the dark about the status of the program while the D.C. medical examiner's office discovered the machine's results weren't certified. Nearly 400 convictions are now under scrutiny.

"At this time, the way [the attorney general's office] is treating officers and the program's lack of oversight and organization, the officers in D.C. are hesitant to make DUI arrests," Officer Ben Fetting testified.

Without breath tests as evidence in DUI cases, officers are now instructed to take urine samples in addition to field sobriety tests. But Officer Andrew Zabavsky testified that the District's chief toxicologist has not been brought into court to testify on any of the department's urine samples because doing so could potentially force him to reveal the ongoing problems with the city's alcohol breath-test program.

Unlike breath tests, blood-alcohol content scores from urine samples have an error rate of plus or minus 40 percent, experts said. And without breath scores, officials can't enforce mandatory jail sentences based on a defendant's blood-alcohol content.

"I feel like we're going forward with one hand tied behind our back," said D.C. Councilman Phil Mendelson, D-at large and chairman of the Judiciary Committee.

D.C. Deputy Attorney General Robert Hildum said officials are committed to set the program right, but could not say when breath analyzers will again be certified for use in DUI cases.

When pressed by Mendelson, Hildum said it could take at least several months to restore the program. The councilman gave Hildum 10 days to report back with a plan to fix the breath analyzer program that includes specific milestones for its restoration.

Hildum played down the importance of breath scores in gaining DUI convictions. In virtually every case that has been reviewed since February 2010, when officials first became aware of the breath test issues, there has been enough evidence to sustain a conviction without the breath scores, he said.

"The scores are important," Hildum said. "We want to get them as soon as possible. But they're not essential to the cases."

Police union chief Kris Baumann criticized the police department, the attorney general's office and Mendelson for allowing the breath test program to struggle for so long, putting officers in a poor position to make DUI arrests and putting D.C. residents in danger.

bgiles@washingtonexaminer.com

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Ben Giles

Staff Writer - Crime Beat
The Washington Examiner