Zero Tolerance in D.C.

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

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

Washington Post

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.

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