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Zero Tolerance in D.C.

by TChris

Zero tolerance is an excuse for zero thinking. In Washington, D.C., it also seems to be an excuse to harass drivers who haven’t broken any law.

D.C. police pulled over Debra Bolton for driving without headlights. Fair enough; she deserved the warning she received for that infraction. But the officer smelled alcohol on Bolton’s breath, so he made her do field sobriety tests. Bolton thinks she aced the tests. The officer claims he told her to recite the alphabet from D to X, while Bolton thought he said D to S. He also claimed she lost her balance during balance tests, which Bolton disputes. And the officer made the improbable claim that he saw “jittering” in her eyes when he administered the horizontal gaze nystagmus (HGN) test, a test that supposedly reveals whether a driver’s blood alcohol content exceeds .10.

The officer arrested Bolton, and the results of a breath test revealed that Bolton was telling him the truth: she’d had a glass of wine with dinner, but that was all. She tested .03, well under the legal limit of .08. Yet Bolton’s ordeal had only begun.

Bolton went to court four times to contest the unsupportable charge that she had driven under the influence of an intoxicant.

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."

But there was no actual evidence that Bolton’s ability to drive safely was impaired. She wasn’t weaving or driving erratically, and for several reasons, the officer’s claim that he had probable cause to arrest her is suspect.

On his report, [Officer] 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 [for] impairment with a .03" blood alcohol level, Klaunig said.

The HGN has about as much scientific basis as voodoo, but even those who vouch for the test acknowledge that a person with a .03 blood alcohol content shouldn’t have “jittery” eyes -- if they did, the test would be useless as an indicator of probable cause. While Officer Fair claimed to see nystagmus in Bolton’s eyes, he may say that whenever he pulls over a driver and catches a whiff of alcohol. Officer Fair “averages more than 100 drunken driving arrests a year.” How many of those are legitimate, and how many are made to pad his arrest statistics? Bolton’s case suggests that Fair isn’t a reliable reporter of field sobriety test results.

Meanwhile, the police department’s “zero tolerance” policy assures that safe drivers, who have broken no law and who are not impaired, will be forced to waste countless hours in court, unless they give in to the extortionate demand that they spend $400 on a “social drinkers” class as part of a pretrial diversion program.

This is how the D.C. police department’s website explains the policy:

"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."

Of course, Bolton’s driving wasn’t “extremely bad,” and she had to go to court four times before prosecutors decided she wasn’t going to roll over and enter a diversion program that she obviously didn’t need. All because of a “zero tolerance” mentality that fails to distinguish drivers who are actually impaired from those who, quite legally, drive after having a glass of wine with dinner.

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.

It’s time for D.C. to get in step with the rest of the country, which hasn’t become quite this repressive. There’s simply no scientific evidence that a driver’s ability to drive safely is impaired at .03. Drivers like Bolton shouldn’t be forced to jump through hoops because the D.C. police have “zero tolerance” for drivers who haven’t actually broken any law.

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  • Display: Sort:
    Re: Zero Tolerance in D.C. (none / 0) (#1)
    by Jlvngstn on Sat Dec 17, 2005 at 01:04:57 PM EST
    And what is the "diversion plan"? State sponsored AA/NA? Only inflates the BS numbers of those "addicted" or in "counseling" and makes people attend support groups that they do not need.

    Re: Zero Tolerance in D.C. (none / 0) (#2)
    by Johnny on Sat Dec 17, 2005 at 01:04:57 PM EST
    Oh my gods... 1 drink qualifies for counseling? Screw DC.

    Re: Zero Tolerance in D.C. (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:57 PM EST
    Started looking into this yesterday when it appeared in the WAPO, but have had no success in finding the law that allows DC police to ignore the specified BAC of .08 in the DUI law and arrest for .01. Can anyone help with that?

    Re: Zero Tolerance in D.C. (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:57 PM EST
    this is why all DUI traffic stops should be videotaped. it shouldn't come down to a battle of he said/she said.

    Re: Zero Tolerance in D.C. (none / 0) (#5)
    by sarcastic unnamed one on Sat Dec 17, 2005 at 01:04:57 PM EST
    "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." My first reaction to this was the old "ignorance of the law is no excuse" bit, but on second thought, if a particular city in a country has a law which is so far out of line with what is generally understood to be the law in the other 99.99% of the country, then that city either ought to publicize the hell out of the law so everybody knows it, or change the law.

    Re: Zero Tolerance in D.C. (none / 0) (#6)
    by sarcastic unnamed one on Sat Dec 17, 2005 at 01:04:57 PM EST
    ...at the very least the info ought to be highlighted if you want a DC driver's license.

    Re: Zero Tolerance in D.C. (none / 0) (#7)
    by Patrick on Sat Dec 17, 2005 at 01:04:57 PM EST
    1 drink and gets a .03 BA how long after? Must have been bigger than the average drink.

    Re: Zero Tolerance in D.C. (none / 0) (#8)
    by roger on Sat Dec 17, 2005 at 01:04:57 PM EST
    I recently tried a case where my guy blew .05. During trial (!) the state managed to get the judge to keep out the breath, and the video. It was fun to ask the breath tech what his job title was. The jury figured out that the state was trying to con them, but my guy still had to endure a day of h*ll

    Re: Zero Tolerance in D.C. (none / 0) (#9)
    by roy on Sat Dec 17, 2005 at 01:04:58 PM EST
    BAC is a dubious measure of intoxication anyway. Personally, I'm not fit to drive after a single beer, with a guestimated BAC of .02, even after coffee and breath mints. Presumably there are some people at the other extreme, who can drive with a BAC of .10 as safely as most people can sober (but don't try it).

    Re: Zero Tolerance in D.C. (none / 0) (#10)
    by Johnny on Sat Dec 17, 2005 at 01:04:58 PM EST
    The only reason to use BAC as a standard is to be able to charge people who do not show excessive impairment after many beers. It's BS to begin with. If a person can pass "field tests", (and I am assuming they are created to test the ability to operate a vehicle) let them go. Patrick, maybe a late dinner? Maybe the glass of wine was after dinner... Maybe this woman has low tolerance. In any event, she was arrested for driving sober.

    Re: Zero Tolerance in D.C. (none / 0) (#11)
    by jen on Sat Dec 17, 2005 at 01:04:58 PM EST
    This is just one of the reasons why many of us prefer to stay out of DC normally. They even passed a law saying out of state (Virginia suburbs and Maryland suburbs they meant) handicapped licence plates were not valid to park in DC handicapped spots. DC has it in for those who live in the suburbs and this may have played a tiny role in why Walter Reed is moving. Just saying.

    Re: Zero Tolerance in D.C. (none / 0) (#12)
    by Lora on Sat Dec 17, 2005 at 01:04:58 PM EST
    While Bolton has my full sympathy for being utterly jerked around in the court system, and by questionable police tactics, she was still driving dangerously. Driving without headlights is dangerous. Now, it's entirely possible that without that glass of wine, she would have remembered to turn on her headlights. If she had been involved in an accident without her headlights on, and .03 BAC, impairment would have to be considered. The point being, your memory and judgment can be adversely affected by small amounts of alcohol or other intoxicants, making you overall a less safe driver.

    Re: Zero Tolerance in D.C. (none / 0) (#13)
    by roger on Sat Dec 17, 2005 at 01:04:58 PM EST
    Johnny, In my experience, the roadsides are very poor at showing intoxication (I am sure that Patrick would dispute this). However, driving w/o headlights is the single most accurate indicator of impairment (about 60% as I recall)

    Re: Zero Tolerance in D.C. (none / 0) (#14)
    by roy on Sat Dec 17, 2005 at 01:04:58 PM EST
    As in, 60% of impaired drivers go w/o headlights, or 60% of drivers who go w/o headlights are impaired?

    Re: Zero Tolerance in D.C. (none / 0) (#15)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:58 PM EST
    A 0.3 BAC doesn't seem odd for a decent sized glass of wine for a fairly small woman. As a rule of thumb a woman is going to hit 0.8 at about 3 drinks, while a large man will do so at about 5 drinks, and one less wouldn't be unheard of for a smaller man or woman respectively. The cop's report read in light of all the facts leads to the strong inference that he's lying (New York had its own testilying case a few years ago), and the prosecutor's actions are also questionable. And, cops who lie belong in prison. I'm not sure which is worse: incompetent prosecutors (reasonably plausible in a traffic case as they are probably green), or dishonest ones (losing a specific case file twice sounds pretty implausible). If that is happening often, the judge should give the prosecutors a tounge lashing. There is nothing wrong with stopping someone for headlights (and it isn't clear if it is a burned out headlight or a not turned on headlight in the story), and charging them with that. But, for cripes sake, don't try to press drunk driving charges against someone when they are at 0.03 and lie to make it happen. The DC law says that if you have non-zero BAC and this causes you to engage in horribly bad driving that you can still be prosecuted for DUI. But, the evidence of horribly bad driving caused by DUI is very thin here.

    Re: Zero Tolerance in D.C. (none / 0) (#16)
    by cpinva on Sat Dec 17, 2005 at 01:04:58 PM EST
    Driving without headlights is dangerous.
    yes lora, it is. however, had you read the article, you would have known that her car has a feature that, when activated, automatically turns on the headlights, using an optic sensor. according to ms. bolton, when she left the car at the garage, the sensor was activated (she always leaves it on), and she hadn't realized it had been turned off, apparently by the lot attendant, until she was stopped. i read the story in the wp, and was reminded of an incident that happened to me, in fairfax county, many years ago. i parked on a side street one morning, and went to my office. upon returning to my car that evening, i found a parking ticket affixed to the windshield. i had, per the ticket, parked in a designated "no parking" zone. i looked around for the sign, and found it, on the other side of a parking lot entrance. i was prepared to write a check and be done with it, until it occured to me that i shouldn't have to guess what the law is. i went to court, pointed out the disparity of where i was parked, vs where the sign was. my position was simply, if you want me to do or not do something, you are obligated to tell me, not force me to guess. the judge agreed, and tossed the ticket, much to the irritation of the issuing cop. that's the position i take with laws in general: i shouldn't have to go on a lexis/nexis search, it is the government's obligation to inform me.

    Re: Zero Tolerance in D.C. (none / 0) (#17)
    by roger on Sat Dec 17, 2005 at 01:04:58 PM EST
    Roy, 60% w/o headlights are impaired

    Re: Zero Tolerance in D.C. (none / 0) (#18)
    by Lora on Sat Dec 17, 2005 at 01:04:58 PM EST
    cpinva, Well you're right, I hadn't read that detail about the automatic sensor. That would make it easier to miss the fact that your headlights were off. However, although I have problems with the law and how it has been misused (this seems to be a case in point), I still agree with it in principle: If you are impaired, you shouldn't be behind the wheel of a car. And just because your BAC is below the legal limit, it doesn't mean you are not impaired. You could misjudge and kill somebody. Your chances are greater when you are impaired. I am in favor of keeping impaired drivers off the road.

    Re: Zero Tolerance in D.C. (none / 0) (#19)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:58 PM EST
    She was cocky, the cop said. That is probably why he thought he should have her arrested. She wasn't coy enough or saying yes sir, no sir. And I am sure he thought he would get his last snarky dig in when he told her the ticket for the headlights would be a warning. What an SOB.

    Re: Zero Tolerance in D.C. (none / 0) (#20)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:59 PM EST
    Related by not legal specifically, but WHY do cars not turn on their lights automatically when it gets dark? In Los Angeles, the number of cars driving without lights has, over the last five years, become an epidemic. The obvious cause: the SUV boom, and drivers who can't tell if their headlights are on, because they can barely see over the steering wheel. Or they are too busy watching the onboard video or talking on the cell. But the situation is VERY dangerous, and I'm sure it's not confined to LA. Given our technology, I put the blame on car makers.

    Re: Zero Tolerance in D.C. (none / 0) (#21)
    by Sailor on Sat Dec 17, 2005 at 01:04:59 PM EST
    1 drink and gets a .03 BA how long after? Must have been bigger than the average drink.
    How large was the woman; how long after the drink was consumed; how calibrated was the machine? Regardless, .03 ISN'T DRUNK. Not even MADD, (read Ladies Temperance Union), is willing to go that far yet. Nystagmus is a completely misunderstood physical phenomena. Cops are trained to say it as 'probable cause.' In truth, it can be a natural saccade, nervousness by being questioned by a cop or secondary to meds or a nervous condition. In most cases where the defendant can afford expert testimony nystagmus is chucked. Myself? I refuse to be subjected to stupid human tricks. Take me to the facility where an actual calibrated machine can administer a test or freak off. (Of course in reality, if you phrase it that way, you've suddenly assaulted a cop, gotten beat up, and have a lot more charges against you.)

    Re: Zero Tolerance in D.C. (none / 0) (#22)
    by Johnny on Sat Dec 17, 2005 at 01:04:59 PM EST
    Myself? I refuse to be subjected to stupid human tricks. Take me to the facility where an actual calibrated machine can administer a test or freak off.
    In my state, refusing a bloodtest irrgardless of consequences automatically results in a suspensionm of your license for one year... Fair? No not at all. According to the fascist pigs calling themselves cops and conservatives? Yes. Much like any sex related crime, simply being accused of the crime is enough to destroya life... What do I ultimately say? To hell with those who think that a certain number can determine my capacitance to operate a vehicle... The entire reason BAC exists is to convict those the pigs decide are too drunk too drive, AFTER they pass a variety of "field tests"... Scenario... "Well mr. Reichartz, you have passed every known physical exam with regards to your ability to perform basic automobile functions... Too bad you blew a .02, you lush. Hope you enjoy your time with the buttrapers on the "hill"...." I sincerely hope that people realize that BAC levels are an issue because the state needs income...

    Re: Zero Tolerance in D.C. (none / 0) (#23)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:00 PM EST
    I'm familiar with the axiom that ignorance of the law is no defense, but our system of laws is also based on the requirement that all duly enacted laws be promulgated. Given that no one seems to be able to find a law in the DC code giving the police the legal authority to arrest people for DUI even though their BAC is below the legal limit specified in the law, including the cop who said he has that authority and the reporter who wrote the story, could it be that this law, even if it does exist, has never been promulgated sufficiently? If that's the case, would that be grounds for challenging any convictions under the law?

    Re: Zero Tolerance in D.C. (none / 0) (#24)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:05:02 PM EST
    justpaul - Most excellent question. Any lawyers around? PIL writes:
    Given our technology, I put the blame on car makers.
    That's right PIL. People don't kill people, guns do. et al - There is a huge industry grown up around evaluating, testing and training those citizens who have been convicted of DWI, DUI. etc. To get laws changed, you are going to have to defeat these vested interests. Good luck.