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In D.C., none for the road

A little known law allows police in Washington, D.C., to arrest drivers with as little as .01 blood alcohol content.
/ Source: a href="" linktype="External" resizable="true" status="true" scrollbars="true">The Washington Post</a

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.

Low threshold
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. In all three jurisdictions, .08 is the legal limit -- meaning that whenever the blood alcohol content measures .08 or above, the 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.

'Am I going to get a ticket for this?'
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 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 speeding ticket 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.


Zero tolerance
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 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 her "unfortunate incarceration," Bolton has spent hours in .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 what she calls 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 issue 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.