Articles Tagged with breathalyzers

car-1232347As previously discussed, if you are arrested in the District of Columbia for a DUI, the DMV will most likely suspend or revoke your license for a period of 6 months to 2 years depending on various factors. However, the DC DMV offe
rs an Ignition Interlock Device Program (IIDP) allows DUI and DWI offenders to get their driving privileges back faster.  An ignition interlock device is a breathalyzer connected to a car’s ignition system. To start the car, the driver must first blow into the device to check the alcohol level on his or her breath. The car will only start if the driver’s breath alcohol level is below an accepted amount on the device.

While the device itself may be a bit burdensome on a driver or a somewhat unsightly in your vehicle, DC’s IIDP gives DUI offenders a chance to reduce the suspension or revocation period on their license. What this means is that if your license is suspended because of a DC DUI and you participate in the program, you get a restricted driver’s license which allows you to drive as you once did, so long as your vehicle contains the breathalyzer. Although the program is optional at the moment, it may become mandatory for some DUI offenders.

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1423322313o0gx3If you operate a vehicle in the District, DC law states that you have given consent to submit to a breathalyzer test if you get stopped by the Metropolitan Police Department (“MPD”) for suspected DUI or DWI. However, MPD is not going to force you to take a breathalyzer test. You can refuse to submit to testing. At Scrofano Law PC, while the facts of every case are different, we believe that if you have had even a drop of alcohol, refusing to take a breathalyzer test will usually better protect you and your rights.

To convict someone of DUI, the government must prove that the person (1) operated a motor vehicle in DC, and (2) was intoxicated. Without breathalyzer results, it is more difficult for the government to prove that you were intoxicated. DC criminal laws allow the government to use your refusal to take the breath test as evidence that you were intoxicated. What this means is that the government will provide a judge with proof that you refused to take the test and argue that you must have refused because you were feeling guilty about drinking and driving.

For first time DC DUI or DWI offenders who refuse to take a breathalyzer test, the government has to provide more evidence than just your breathalyzer refusal to prove that you were intoxicated. For example, the government will have an MPD officer testify about the way you were acting when you got pulled over and why they thought you were intoxicated based on your actions—like odor of alcohol on breath, performance on the SFST’s, and other observations. For people charged with a second DUI or DWI offense in DC who refuse to take a breathalyzer test, a different legal standard applies.

DC DUI and DWI laws state that if a second time DC DUI offender refuses to take a breathalyzer test, a jury is allowed to presume a person was intoxicated based only on the refusal. As a second time DUI or DWI offender, if you refuse to take a breathalyzer there is a rebuttable presumption that you were intoxicated. A rebuttable presumption means that unless you can prove that you were not intoxicated, a jury can find you guilty of DUI based solely on the fact that you refused to take the breathalyzer test.

You might be thinking “I only had a few drinks. Wouldn’t it have been easier to prove I wasn’t drunk if I submitted to the breathalyzer test?” Not exactly. MPD has a history of problems with their breathalyzer program. This no-win situation is exactly why the rebuttable presumption for second time DUI offenders is a highly contentious area of the law.

In our legal system, you are innocent until proven guilty—at least that is how the system is supposed to work. For second time DUI offenders who refuse to take the breathalyzer test, you are essentially guilty until you prove yourself innocent. The DC Court of Appeals has not decided whether the rebuttable presumption is constitutional, but many DC Superior Court judges have ruled that it is unconstitutional and have refused to apply it.

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rShzOqzhThe last post discussed some of the background involved in the District of Columbia’s problems it had with its Breathalyzer program. The Metropolitan Police Department not only miscalibrated the machines to read 40 percent higher than they were supposed to but also failed to conduct accuracy testing for a period of almost ten years. As I discussed in Part I, I started an appeal in 2013 for a person who had plead guilty to DUI and served mandatory jail time based on breath scores for a machine that had not been accuracy tested.

Through another attorney he had tried to move to withdraw his guilty plea. The government vigorously contested his motion. While the government had agreed to allow hundreds of people to withdraw guilty pleas that plead or were found guilty during the 17 month period the machines were miscalibrated, it did not want to open up Pandora’s Box for ten years of convictions in which MPD failed to conduct accuracy testing. Unfortunately, the trial judge agreed and denied the motion without a hearing. After I filed my brief, it took the government one year to respond. I did not ask the Court of Appeals to allow my client to withdraw his guilty plea. Rather, I argued that the trial court had abused its discretion by not having a hearing on the motion.

The case was set for oral arguments in April of this year and ultimately the District of Columbia Court of Appeals agreed with me. The Court of Appeals reversed the trial judge and remanded it for a hearing on whether my client was entitled to have a hearing on the motion. Any hearing on that motion would reopen up the flood gates on the District government’s scandalous Breathalyzer program. I planned to subpoena Kelvin King, the officer in charge of the program for all these years, Ilmar Paegle, the whistleblower who discovered the problems, as well as potentially prosecutors and supervisors from the OAG. Questions of what the government knew and when they found it out have to this day never been answered. Did prosecutors at the OAG’s office knowingly allow defendants to plead guilty to DWI in cases based on faulty Breathalyzer scores?

DC DUI

DC DUI

In short, the answer is maybe. The District of Columbia record sealing statute makes Driving under the Influence and Driving while Intoxicated “ineligible misdemeanors.” Accordingly, on its face, the law prohibits sealing of a conviction for driving under the influence. However, a few months ago, I won an appeal that may have opened the door for getting at least some DUI convictions removed from a person’s record.

I will discuss this topic in a two part series. The first part will provide the backdrop of the District of Columbia Record Sealing Act and the problems the District of Columbia had with its Breathalyzer program for about ten years. Part Two will discuss how, because of the Breathalyzer issues and an appeal I won in May of this year, it may in fact be possible to get a DUI conviction taken off someone’s record in limited circumstances.