Before beginning my practice in Virginia, I went over to traffic court in Fairfax County to observe, and was struck by the large number of DWI cases that pled. One piece of blue paper after another was passed up to the judge, with the defendants lining up to accept responsibility for their offense. These guys don’t know how to try a DWI case, I thought to myself smugly. They amass clients, charge a hefty fee, and then pocket the money.

*  *  *  *  *

A couple of days ago, I lost a DWI trial in Alexandria.

I always take the rest of the day off following a trial. My wife and I go out for a celebratory dinner after a win. After a loss, I go home to brood in my study.

If I spend the rest of the day blaming myself for a loss, I have usually found something else to blame by the following morning. In this case, two days later, I have decided to blame Virginia’s rules of discovery and the prosecutor.

*  *  *  *  *

Criminal defense lawyers in Philadelphia begin the plea bargaining process with virtually everything the government lawyer has:  police reports, accident reconstruction reports, witness statements, notes from the field sobriety and breath tests, and so on. In other words, you know what you are dealing with.

While the discovery rules in D.C. are not quite as liberal as in Pennsylvania, there is the Jencks Act, which requires the government to turn over any statements made by a witness after the witness has testified. To avoid delaying the proceedings once the trial has begun, a helpful prosecutor will occasionally give you the statement in advance.  Again, you have at least some idea of what to expect from the testimony at trial.

By contrast, the defense in Virginia is guaranteed only two pieces of discovery:  (1) the defendant’s record, and (2) information on any statements the defendant may have made. You can occasionally get a brief summary of the officer’s report from the clerk’s office. The defendant also gets a copy of the breath test certificate in DWI cases, and defense counsel can request specifics on the breath test machine from the Department of Forensic Sciences.

The result of these very limited rules of discovery is that, depending on the results of your own investigation, you are often flying blind when helping the client decide whether or not to accept the government’s plea offer.

*  *  *  *  *

Courts hate trial by ambush, and, in fact, it is in no one’s interest to have cases that should have pled go to trial. The government has to go to all the trouble of bringing in all its witnesses. In this particular case, there were three witnesses — the off-duty officer who observed the accident, the officer who was called to the scene to administer the field sobriety tests and to make the arrest, and the officer who administered the breath test – all of whom sat in court the whole day waiting for the case to be tried.  And the defendant can get slammed during sentencing for having exercised her constitutional right to contest the charges.

*  *  *  *  *

Prosecutors who want the defendant to accept a plea offer can occasionally go beyond the obligatory disclosure requirements to let you know what they have against your client. In this case, adding to my list of complaints, excuses and self-justifications, this particular prosecutor elected to remain silent.

I had no idea, for example, that an off-duty officer had actually witnessed the accident – thereby satisfying the government’s burden of proving “operation” — until he showed up in the room moments before trial, and by then it was too late to accept the plea. And there was no way of finding out this information for myself:  Since his name was not listed in any police report I had, I could not check the name tags of the officers assembled in the hallway to see if he was there.

In addition, I had no inkling of what turned out to be a very damning police report until the officer was already on the stand. Even then, the fact that I was able to read the report before the actually testimony was pure happenstance.  When the officer, already on the stand, was unable to remember certain specifics during direct, the prosecutor was required to pull out the report to refresh the officer’s recollection. The prosecutor couldn’t show the officer the report before she showed it to me. I thus had a few moments, while the entire courtroom sat in impatient silence, to read what turned out to be a very detailed report before the officer continued his testimony. Again, however, this gave me little time to do damage-control, much less factor the report into our decision on the plea offer.

It is so much easier to find someone else to blame.

*  *  *  *  *

I have had a string of successes recently at trial, and I can’t help wondering if this didn’t factor into what turned out to be my client’s ill-fated decision to take this case to trial. I always do my best Joe “Just the Facts, Ma’m” Friday imitation whenever I counsel a client on a plea offer, because the client needs to own the decision. At the same time, the client cannot help but be influenced by her lawyer’s demeanor.

At 6:00 pm today, my client will turn herself in to begin serving her jail time. I will try not to think about this. I will think instead of a client facing substantial jail-time who told me once with a resigned smile that she had been listening to a lot of Johnny Cash. In addition, the next time I see my colleagues lining up their clients to plead guilty, I think I’ll be a tad less judgmental.

Michael Bruckheim was scheduled to cross-examine Lucas Zarwell, the chief forensic toxicologist in D.C., and a group of DUI lawyers had gathered outside Room 116 yesterday afternoon shortly before 2:00 pm.

Zarwell testified before city council last May that urine samples taken by police to test suspected drunk drivers are not reliable enough to accurately measure a person’s blood alcohol content:  “If you’re going to look at urine concentrations of alcohol and science, there is a very loose correlation,” Zarwell stated.  “There has been several studies done on it, but currently if you are just voiding your urine or urinated into a cup and there is alcohol in that, it does not correlate to a blood concentration.  It could be higher, as much as 40 percent higher.

It could also be 40 percent lower.

And yet the government is continuing to proceed with DUI cases in the District using urine samples as both per se and circumstantial evidence of the defendant’s intoxication at the time of driving.  The government’s expert witness?  Lucas Zarwell.

In addition to offering moral support for Bruckheim, the DUI lawyers who came to watch the trial were also interested in Judge McCabe’s rulings on Bruckheim’s anticipated hearsay and Confrontation Clause objections.  In Bullcoming v. New Mexico, the U.S. Supreme Court held that the government cannot meet its obligations under the Sixth Amendment’s Confrontation Clause through “surrogate” testimony.  Specifically, the Court held that the government cannot substitute the testimony of a lab technician who was familiar with the procedures used in analyzing a blood sample for the presence of alcohol for the testimony of the technician who actually conducted the test.

And yet here was Lucas Zarwell to testify not on the urinalysis he himself had conducted but on the results of a urine test he had supervised.  As in other cases in which he has testified recently, Zarwell often spoke in the passive voice:  “It was re-tested and confirmed.”  When he did use the active voice, he made liberal use of the first person plural:  “We used a headspace gas chromatograph.”

Bruckheim was relaxed and friendly with his cross-examination.  Good afternoon, Mr. Zarwell, he began.  How are you today?   He took his time in laying the foundation for his questioning, despite Judge McCabe’s growing impatience, and after an hour or so of the cross-examination, Zarwell began to show signs of fatigue.  Forty degrees Centigrade, he testified in response to one of Bruckheim’s questions.  Don’t ask me to convert that into Fahrenheit.

Judge McCabe eventually ruled against Bruckheim’s client on both the hearsay and Confrontation Clause issues; this is consistent with the judge’s holdings in other recent case.  The judge told Bruckheim:  You can argue the issue when it comes to the weight I assign Mr. Zarwell’s testimony.  But I am not going to rule out the testimony on the basis of the hearsay and confrontation issues.

More importantly, in ultimately arriving at a guilty verdict, the judge not only used Zarwell’s testimony as circumstantial evidence of the defendant’s intoxication, he also concluded that Bruckheim’s client was guilty of the per se offense.  In other words, he concluded that the urine test alone was enough to make out the intoxication element of the offense, even apart from the police officer’s observations of the defendant’s behavior that night.

The Confrontation Clause issue raised by the Supreme Court in Bullcoming is just one more challenge for Office of the Attorney (OAG) when it comes to an already beleaguered DUI program in the District.  The program was widely discredited with revelations beginning in February 2010 that, due to fundamental problems with the way breath test machines were calibrated, D.C. breath test scores over the past ten years may have been inaccurately reported.  Since that time, a number of police officers involved with the program have been reportedly investigated for falsifying data.  More recently, according to Fox News, at least one Assistant Attorney General has been referred to the D.C. Bar Counsel for possible disciplinary action after police officers told city council she had asked them to lie under oath.

Although the OAG prevailed on the issue yesterday afternoon, a group of lawyers led by Bryan Brown and Thomas Key is looking into a potential appeal of the Judge’s decisions based on Confrontation Clause issues.  Stay tuned.

The government vouches for him.  He himself doesn’t need to come to court, much less explain the basis for his conclusions.  His “testimony,” which is delivered through an interpreter, consists of nothing more than a couple of numbers and some pre-set generic language. There is no opportunity to cross-examine him. And yet the court can send the defendant away for months, even years, on the basis of his testimony alone.

The witness is not a person but a piece of equipment; it is the breath test machine used in a per se DWI case.

The Sixth Amendment guarantees a person who has been accused of a crime the right “to be confronted with the witnesses against him.”  The U.S. Supreme Court held in Crawford v. Washington that, in cases in which the accuser is not available for trial, the  accuser’s “testimonial statement” against the defendant can only be used if the government can satisfy two conditions.  First, the government must prove that the accuser is unavailable for trial.  Second, the government must prove that the defendant had a prior opportunity to cross-examine the accuser.

In Melendez-Diaz v. Massachusetts, the Supreme Court refused to find a “forensic evidence exception” to the rule in Crawford.  More recently, in Bullcoming v. New Mexico, the Court held that the government cannot meet its obligations under the 6^th Amendment’s Confrontation Clause by introducing “surrogate testimony.”  Specifically, it held that the government cannot substitute the testimony of a lab technician who was familiar with the procedures used in analyzing a blood sample for the presence of alcohol for the testimony of the technician who had actually conducted the test.

The government will undoubtedly argue that there is nothing in these Supreme Court decisions that prohibits continued use of a breath test instrument – for example, the Intox EC-IR II that is used in D.C., Virginia and many other jurisdictions — to secure a conviction for a per se DWI offense.  The government will acknowledge that the breath test ticket that displays the subject’s blood alcohol level at the time of testing is clearly a piece of testimonial evidence that falls within the scope of the Confrontation Clause.  At the same time, the government will argue that, assuming that the defendant has availed himself of the “notice-and-demand” procedures used in many jurisdictions to assure that the breath test operator is present at trial, the defendant will have ample opportunity to cross-examine the government’s key witness against him.   For example:  Did the operator observe the defendant for the required time period in advance of the test to assure that the defendant did not hiccup, belch or burp, thereby introducing alcohol back into the mouth and contaminating the result?  Was the subject adequately advised of the procedures for taking the test?  And so on.

The breath test operator’s testimony at trial would satisfy the Melendez-Diaz requirement of a “live witness” in order to introduce a forensic laboratory report.  And Bullcoming required only that the analyst who actually conducted the test be present at trial to testify to the results of that test.

The problem with this argument is as follows:  The police officer who operates a breath test machine in a DWI case is completely unlike the laboratory technician in Bullcoming. The technician in Bullcoming undertook a fairly complicated scientific and technical procedure to determine the level of alcohol in the subject’s blood.  As the Court noted in that case, use of the gas chromatography machines employed in Bullcoming “requires specialized knowledge and training”:  “In order to perform quantitative analyses satisfactorily and . . . support the results under rigorous examination in court, the analyst must be aware of, and adhere to, good analytical practices and understand what is being done and why.” (Emphasis added.)

This is not the case with the operator of a breath test machine. First, unlike the laboratory technician in Bullcoming who presumably had at least a college degree in science or technology, the operator of a breath test machine is typically a police officer who received at best a couple of hours of training in the operation of the machine.  Having been trained in the operation of the machine myself, I can tell you I knew enough about the machine to testify knowledgeably in a court of law after the first half-hour of training.  You replace the mouthpiece, you type in some information, you instruct the subject on blowing, and then you push a few more buttons before the machine spits out a result.  A 10-year-old could be taught to administer the machine assuming s/he knew how to type.

But neither I, nor the police officer, nor the 10-year-old child would have any idea how the machine came to its result. Nor would, in the words of Melendez-Diaz, someone with the “scientific acumen of Mme. Curie and the veracity of Mother Teresa.”  And that’s because the source code to the equipment– the software that determines the machine’s calculations — is the proprietary information owned and protected by Intoximeters, Inc. of St. Louis, Missouri, an out-of-state company completely immune at least in Virginia from subpoena power.  As a prosecutor in Alexandria recently crowed to me, not even the government has access to that information.  I can only assume that, with all the government’s ability to protect business confidential information, the government wants it that way.

Having provided this context, I will now repeat the allegations I made in the opening paragraph.

The government vouches for him.  In Virginia, for example, the EC-IR II is one of two machines approved for DWI testing by the Department of Forensic Sciences.  In how many other situations is a party allowed to vouch for a witness’ veracity before he has even testified?

He himself doesn’t need to come to court, much less explain the basis for his conclusions.  His “testimony,” which is delivered through an interpreter, consists of nothing more than a couple of numbers and some pre-set generic language. The police officer who dutifully punches in the numbers and produces the breath test ticket has no understanding – and no ability to understand – how the machine arrives at its conclusion.  As such, apart from a few observations on the correct administration of the test, he offers nothing more to the court’s understanding of the issues involved than would an interpreter who was translating into English the words of a non-English-speaking witness.  He is, in Bullcoming’s words, a “mere scrivener” and the breath test ticket nothing more than “raw, machine-produced data.”

There is no opportunity to cross-examine him. The real witness in this case, if not the machine itself, would be someone with an understanding of the source code; in the case of EC-IR II, someone from Intoximeters, Inc., in St. Louis.  This is the only person who could, in the language cited by Bullcoming, “understand what is being done and why” and stand accountable to the defense.  And yet this person, in Virginia anyway, is completely immune from subpoena.  (How this impacts a defendant’s constitutional right to “compulsory process” will have to be dealt with separately.)

And yet the court can send the defendant away for months, even years, on the basis of his testimony alone. In order to secure a conviction for a per se DWI offense, the government need prove only that:  (1) the defendant operated or was in physical control of the car, and (2) the defendant’s blood alcohol content at the time of driving/test was 0.08 grams or more per 210 liters of breath.  (This is opposed to driving under the influence (DUI) in which the government is generally required to prove some type of impaired driving as a result of intoxication.)

Depending on the blood alcohol level and the defendant’s prior criminal history, a person convicted of per se DWI can be sent to prison for years.  The penalty for a third DWI conviction within 10 years in Virginia, for example, is a term of imprisonment of one to 5 years and a maximum fine of $2,500, with a mandatory minimum sentence of 90 days.

The accuracy of breath tests machines used throughout the country is a great fiction perpetrated by state legislatures in order to maintain the viability of programs to eliminate drunk driving.  While I fully support this objective, no end is worth the wholesale degradation of our constitutional rights; in this case, the denial of a defendant’s right to confrontation. As the Supreme Court held in United States v. Gonzalez-Lopez, “the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole fair.”  If a “particular guarantee” of the Sixth Amendment is violated, no substitute procedure can cure the violation, and “[n]o additional showing of prejudice is required to make the violation complete.”

This is what is happening with the breath test machines.  Courts maintain the fiction that, because the defendant is in fact given the opportunity to cross-examine the police officer who operated the machine, this is close enough to true confrontation.

At a DWI conference in Williamsburg, Virginia, a couple of months ago, one of the nation’s leading experts on breath test technologies claimed that alternative and more transparent technologies are in fact already available; we just need the willpower and resources to develop them.  With the impetus behind anti-drunk driving programs, you can believe that, were courts to start throwing out cases on the basis of the constitutional violations described above, these alternative technologies would quickly find their way to market.

Every morning in Room 115 of the D.C. Superior Court building, Magistrate Judge Richard H. Ringell delivers an impassioned speech about the evils of drunk driving before proceeding with that morning’s arraignments. Although he rarely changes a word, he speaks without the benefit of notes and as if he is delivering the speech for the very first time. He also shows the Australian public awareness commercial reproduced below.

We defense lawyers will occasionally roll our eyes at the speech. Eager to get to our next court listing, we have now watched this video and heard this spiel so many times we could deliver it ourselves. We also warn clients that, if their case happens to be called first, they will be subject to yet another lecture on drunk driving, beginning with his question about what they do for a living.

Although we are only too aware that Judge Ringell could have us all out of the room much earlier if he decided to forego the lengthy speech, it is hard to criticize the Judge for delivering it. No one is more delayed by the speech than the Judge himself. And, as he says, if he can influence the behavior of just one person in the room, the time spent on the speech will have been worth it.

Safe driving for the holidays.

Earlier this week, I caught the tail-end of a DWI trial in which Michael Bruckheim was representing the defendant. Bruckheim had attended portions of my last DWI trial in D.C., and I decided to repay the favor. I wanted to see him cross examine the same police officer who had testified in my case. And, recognizing that everyone has a unique style in addressing certain issues, I was interested in witnessing his approach to the breath test result.

As a former supervisor in the traffic unit in the Office of the Attorney General, Bruckheim knows his way around a DWI case.  He was calm, respectful, and cagey.  He used standard DWI cross-examination tactics mixed in with some creative approaches of his own. He was able to shift the focus from all the things his client did wrong that night to all the things that had been done right.  And he used the operator’s manual during the breath testimony to raise a number of questions as to how the breath test was administered.

At the end of the trial, the judge considered all of the evidence and found the defendant guilty of all three drinking-and-driving charges.

During sentencing, the judge told Bruckheim that he was struggling with the fact that the defendant had not accepted responsibility for his actions.  All I have seen, the judge said, is denial.

Since Bruckheim was standing with his back to the gallery, I could not see his face.  But he might have looked surprised. His client had not testified during the trial.  He had not made faces during the government testimony.  He had not denied a thing.  All he had done was to force the government – through his lawyer — to meet its burden of proof.

Bruckheim asked for a few minutes to consult with his client, and the court took a quick break.  When the hearing reconvened, the defendant offered a convincing apology for the behavior that led to the charges.  In the end, the defendant was spared any jail-time.

I understand the concept of rewarding someone for accepting a guilty plea.  Having taken responsibility for the person’s actions, there is a greater chance it won’t happen again.  The foregone trial also spares the government the expenditure of considerable resources.

But I struggle with this notion of penalizing someone who exercises his/her constitutional right to a trial. A friend of mine, a former prosecutor, would argue that, if the government only suspected the defendant was guilty before trial, there is no longer any doubt after a guilty verdict.  Why shouldn’t the defendant be penalized accordingly?  After all, by testing the strength of the government’s case through trial, he himself played a role in reducing uncertainty with respect to his culpability.

I have serious problems with this argument.

A Philadelphia judge once criticized a client for continuing to assert his innocence even after the client had been found guilty at a bench trial.  Having convinced himself at some point during the trial of my client’s guilt, the judge seemed offended by the defendant’s refusal to accept this verdict. He thus went to the higher end of the guidelines to sentence my client.

It is possible the judge was mistaken.  Innocent defendants are in fact convicted all the time, and I continue to struggle with the notion of a judge or jury as the ultimate arbiter of truth.

Six or so months ago I wrote about the malleability of truth at trial.  While I have since taken down this blog entry on the advice of Virginia bar counsel, I continue to believe that the objective truth is rarely, if ever, introduced at trial. The finder-of fact – be it a judge or jury – learns what happened not through direct observation but through the imperfect testimony of equally imperfect human beings.  Memories fade.  Perceptions skew.  Minds rationalize.  People have agendas.  And everything the fact-finder learns is shaped through manipulation by the lawyers, with each side attempting to push the finder-of-fact toward its version of the truth.  There are degrees of truth, and variations of the truth.  The verdict reflects nothing more than that version of the truth that was introduced on that day.

In other words, because I didn’t share the Philadelphia judge’s certainty is in his decision, I didn’t think he should punish the defendant for disagreeing with the verdict.  After all, of the three of us, it was only the defendant who was there that day.

In addition, a defendant who is found guilty after testifying in his own defense is in a double-bind.  Accepting responsibility during sentencing would require him to admit he lied on the stand, thereby subjecting himself to perjury charges and enhanced punishment.  Continuing to assert innocence prevents him from receiving more favorable treatment during sentencing.

Finally, penalizing the defendant for refusing to accept responsibility amounts in effect to double punishment for exercising his constitutional right to a trial.  The defendant lost the benefit of the plea bargain the moment the case was set for trial.  Denied mitigation, he is punished further when he refuses to accept responsibility during sentencing.

You would think that Jeff Gamso, as a criminal defense lawyer focusing on death penalty cases, might look down his nose at lawyers handling drunk driving cases.  After all, the difference in stakes is enormous.

You would be wrong.  In the same blog entry in which he vents about listservs, Gamso criticizes the notion, often seen on listservs, that new lawyers can pick up DWI/DUI cases as an easy way to earn some income while they get their “real practices” off the ground.  (In D.C., driving while intoxicated – or DWI – means that the suspect’s blood alcohol concentration exceeded the legal limit.  Driving under the influence – or DUI – requires the suspect’s operation to be appreciably impaired as a result of intoxication.)

Gamso points out the degree of specialization required to handle such cases.  And, he notes, the lawyer’s duty to the client is the exact same whether or not you are dealing with 1st degree murder or a simple misdemeanor charge.  It is not okay to “fuck the client,” Gamso writes, even “if it would only hurt a little.”

A drinking-and-driving case can in fact be very profitable if the lawyer’s only intention is to plead the client out. Many clients facing such a charge have never been arrested before, and are terrified at the prospect of spending even a couple of days in jail.  Many will leap at any outcome that does not involve incarceration, even if it means waiving their right to trial and pleading guilty.  Moreover, DWI laws in which the government must only prove operation and blood alcohol concentration, in addition to our seemingly absolute faith in the science and technology behind the breath test machines, makes the prospect of challenging the charges at trial feel kind of daunting.

As a result, if you went to Room 116 of the D.C. Superior Court building any day of the week at 11:00 am, you will see scores of defendants lining up to plead guilty to DUI. This is despite D.C.’s highly publicized problems with its breath test machines over the past year. This is despite the fact that, even though the DWI charge may be dropped as a part of the plea agreement, a conviction for DUI could result in the exact same sentence and fine and will result in the same consequences for the defendant’s driving privileges. The difference between DWI and DUI has to do with the government’s burden of proof, not with the level of punishment.

This is not to say, by any means, that you should take every DWI/DUI case to trial. The court will give the defendant who pleads guilty credit during sentencing for accepting responsibility.  And since every DWI case is complicated – there is no such thing as a run-of-the-mill case – every DWI case can be tremendously difficult to beat.

A DWI or DUI case can in fact be far more complicated than a serious felony case.  The identity of the perpetrator, for example, may be the only issue in an armed robbery case. There may be no question that someone walked into a convenience store with a firearm and demanded money from the cashier. The only issue for trial might be whether or not that person was the defendant.

By contrast, every DWI case can be challenged at multiple levels. There is the legal basis for the initial stop. There is the legal basis for the officer’s decision after the stop to prolong the seizure for further investigation. There is the administration of the standardized field sobriety test, which is an art in itself. And then there is the breath test administration, with all the supporting science and technology.

In other words, DWI defense is not for beginners.  As someone has pointed out the other day, if you decided to become a heart surgeon, you wouldn’t begin to perform procedures until you were completely ready to do so.  Why would you do any differently when it comes to representing someone at trial?

With the use of breath test machines temporarily suspended in D.C. because of calibration and accuracy problems, people arrested under suspicion of drinking and driving are currently being administered urine tests. Generally considered even less reliable than the breath test as a surrogate measure for blood alcohol concentration, urine tests present at least four different problems for the government.

First, at $75 a pop (as opposed to less than $10 a test for the breath machine), they are more expensive. With the D.C. police testing about 123 suspected drunk drivers a month, this will add almost $100,000 a year to the cost of D.C.’s DWI prosecutions.

Second, the urine test is both distasteful to the police officer and cumbersome to administer. In order to afford any degree of reliability, the subject must void his bladder prior to the test. The officer then needs to wait a period of time until the subject can produce a sample. The officer must also add a preservative to the sample – such as sodium fluoride or mercuric chloride — to prevent decomposition prior to laboratory testing.

Third, urine tests are subject to many of the same problems that afflict breath tests. For example, just as there as problems with the presumed blood-to-alveolar air ratio used in breath tests, there are questions with the assumption used in urine tests that the concentration of alcohol in the urine at the time of secretion is 1.33 times greater than the concentration in the blood. In fact, the ratio in any individual can vary from as little as 0.8 to one to as much as 2.0 to one.

Finally, because urine test results are not available at the time the police officer writes his/her report, they can sometimes result in what I call the “oopsie” phenomenon during the police officer’s testimony in court.

This is how the phenomenon works: A police officer pulls someone over under suspicion of drinking-and-driving. Usually it is because the person has just committed some traffic violation or is driving erratically. While the officer is justified in making this stop for Fourth Amendment purposes, the officer needs additional indications of intoxication in order to continue the investigation (for example, through the administration of field sobriety tests). Otherwise, the officer is constitutionally compelled to write the driver a traffic ticket and send him/her on his way.

Because the smell of alcohol on the suspect’s person or breath provides one such justification, it tends to work its way into a lot of police officer reports summarizing the investigation. It is particularly easy to do so when the officer is writing his report back at the station AFTER s/he has seen the result of a breath test, which again is available immediately. This is a natural thing to do: the breath test confirms the presence of alcohol in the suspect’s system and the officer, knowing that he may well be challenged on the constitutional basis for extending the investigation, thinks, yeah, that’s right, I also smelled it on the suspect’s person or breath. The only question for the officer in this circumstance is whether the odor was slight, moderate or strong.

But what happens when the urine test – with results available only much later — reveals that there was no alcohol in the suspect’s system? If there is nothing at all in the person’s system, the driving while intoxicated (DWI) charges are presumably dropped and the person never ends up in court. If, however, the urine test reveals that the cause of the apparent intoxication was drugs and not alcohol, the case still ends up in court with the person charged with driving under the influence as opposed to DWI. But the officer now has some serious explaining to do when it comes to his report.

This can make for some interesting courtroom testimony, sometimes during trial but more often during a motion to suppress. Most officers will conveniently omit this portion of their report when testifying and it is the defense lawyer who ends up eliciting this little tidbit. This is often to the surprise of the finder-of-fact and other people in the courtroom, who have no idea why the officer suddenly has that “deer-in-the-headlights” look that criminal defense lawyers love so much. Because, after all, they may not know yet what the urine test revealed. How can it possibly be in the defendant’s interest to bring out the fact that the defendant had a strong odor of alcohol on his breath when he was pulled over? And why is the defense counsel making such a big deal about it?

Oh, stop making that face. I am not saying that all — or even most — police officers fabricate police reports or lie on the witness stand. What I am saying is that some officers, firmly believing that the people they arrested are guilty of a crime and having seen many of their cases thrown out on “technicalities” (oh that annoying Constitution), sometimes feel compelled to give the prosecution a little help. The wisest course for police officers — always – would be to simply testify to what they truly did and observed and to leave it to the prosecutors to worry about everything else. As my grandmother used to say, sometimes you can be too clever by half.

Your client is driving along late one night on a deserted highway in Virginia. He is not speeding or swerving. He isn’t driving on the shoulder of the road or into opposing lanes of traffic. He is obeying traffic signals. He has a valid inspection sticker and there is nothing wrong with his car.

While he tells you he did not feel intoxicated at the time, he admits to having had a few drinks earlier in the evening before climbing into his car. Depending on the timeframe and speed with which he consumed these drinks, the amount and type of food he has in his stomach, his size and weight, and a number of other factors, these drinks could have put your hypothetical client over the legal limit of 0.08.

When your client is less than a half a mile from home, he looks into his rearview mirror and notices that a police cruiser has pulled in behind him. He doesn’t know what drew the officer’s attention to him but the officer is now clearly tracking his movements.  Most of us are familiar with this phenomenon – that unsettling sight of a police cruiser in the rearview mirror.  Is he trying to get past us?  Is he pulling us over?  We become momentarily distracted.

This is what happens to your client.  According to the police report, his car swerves two times over the center lane divider.  The car then straddles the divider for two or three seconds.  Depending on the jurisdiction, this could be sufficient grounds for the police officer to make a traffic stop.

A traffic stop is a seizure for Fourth Amendment purposes.  This means that the officer needs to have reasonable suspicion or probable cause to pull someone over.  Otherwise, any evidence collected after the stop can be “suppressed” (that is, precluded from being introduced at trial) as the “tainted fruit” of an illegal stop.  In each case, the court needs to balance the needs of effective law enforcement with the constitutional rights of people traveling on public roads.

There are some great cases in Pennsylvania – beloved by all criminal defense attorneys – that hold that such momentary weaving would not provide the officer with sufficient grounds to make the traffic stop.  But your client is not in Pennsylvania; he is in Virginia.  And, with some of the most severe laws in the nation pertaining to driving while intoxicated, Virginia is one of the worst places to be pulled over under suspicion of drinking-and-driving.

The most frequently cited case that deals with this type of situation – at least as far as you can tell – is Commonwealth v. Neal, 498 S.E. 2d 422 (1998) which prosecutors would argue would apply to the fact scenario in this hypothetical. Most judges would seem to agree. Even the Virginia Lawyers Practice Handbook, which is targeted at criminal defense lawyers, has this to say about the case:  “When an officer stated that he observed the defendant’s car weaving five to ten times in a period of 25 seconds over a distance of approximately half a mile, he asserted an articulable fact that gave rise to a reasonable suspicion of illegal activity that was a permissible basis for stopping the car.”

Arguably, there were other facts in the Neal case that should have contributed to the court’s finding of reasonable suspicion.  For example, the suspect was also speeding.  The officer was responding to a radio call about a reckless driver when he first encountered the suspect.  Moreover, the extent of the weaving in Neal was much more extensive than in the hypothetical example above:  the suspect swerved to the center of the highway and then back again and then weaved inside its lane between five and ten times, touching the right side of the lane each time.

You can thus argue that the facts of your client’s case are more analogous to Commonwealth v. Webb, 56 Va. Cir. 419 (2001), in which the court failed to find that reasonable suspicion supported the stop.  In that case, an experienced police officer observed the suspect’s car touching but not crossing the middle lane of a divided highway and then touching or running along, but again not crossing, the outside lane marker.  The vehicle then drifted back to the left such that the left wheels again touched the middle lane divider.

But good luck with that.  Next time you look in your rear view mirror and find a police officer on your tail, don’t forget that you are in Virginia.

I have always been skeptical of whistleblowers.

Maybe it is because I have always wanted to believe the best when it comes to our government.  Maybe it is because, having worked for the federal government during my previous career, I know that the people who work for the government are for the most part capable and well-meaning people.

In the late 1990s, I was a direct participant in the discrimination suit against Carol Browner and the U.S. Environmental Protection Agency that ultimately resulted in passing of the No Fear legislation.  The No Fear Act strengthens the protections of whistleblowers against government retaliation.

Of the eight managers who worked in that branch of the EPA during the time in question, I was the only one who was not named in the suit.  In fact, as part of her prayer for relief, the plaintiff in the suit specifically demanded that she be reassigned to work directly for me.

But I had worked side-by-side for many years with the senior executives and office directors whose careers were ruined by the law suit.  Since there were only finite resources and much to do, we had often bickered over budget and personnel decisions. We had also been to each other’s homes. We knew each other’s families. And I knew my colleagues to be smart, committed, and well-meaning people.  They were flawed perhaps, as we all are, but they were certainly not racists and sexists and bigots.

I knew from first-hand experience that many of the allegations against them were flat out lies, and I witnessed their pain as the case was reported in the national media. They woke up every morning — as did their spouses, children, and friends — to see their names splattered across the front pages in connection with these terrible accusations. These were accusations that the Washington Post, Time magazine and other reputable organizations seemed to report as fact.  They were allegations that, because of a gag order issued by the Justice Department, my colleagues were powerless to refute.

When I resigned from the EPA, staff told me that the scuttlebutt around the water cooler was that I was leaving in connection with the lawsuit and that although I had not been named in the suit and in fact had been promoted afterward, I was just too disgusted with the way things had turned out.

Although this was not true – I left for purely personal reasons in connection with my wife’s career – the lawsuit had in fact shaken my faith in the judicial system.  It also colored my perspective on whistleblowers, a perspective that continues to influence me today.  It is a perspective I now apply in considering the ongoing scandal in D.C. with respect to the accuracy of the breath test machines used in DWI prosecutions.

First of all, I am surprised that the media have not covered this scandal in greater detail.  Mary Pat Flaherty of the Washington Post broke the original story last February but, from what I can tell, has been mostly silent ever since.  The only other coverage I have seen was a two-part Fox News report from a couple of nights ago.  But, with 10 years worth of DWI convictions now in question, affecting hundreds if not thousands of people convicted of DWI on the basis of faulty breath test results, the ramifications of this are enormous.

Let me put this in terms that might make it slightly more relevant to people:  You too could have been pulled over on the basis of a minor traffic violation and put through a series of difficult and humiliating field sobriety tests. You too could have had your private parts groped as you were processed and searched.  You could have had yourself stuffed into the back of a paddy wagon to sit for 20 minutes to an hour while the wagon went around to pick up other people arrested for criminal offenses.  You could have been fingerprinted and photographed and had all of your belongings taken from you.  After blowing into the breath test machine, you could have spent the night in a jail cell with other people who were drunk, angry, disorderly, mentally ill or whose sweating, panting and retching signaled to you that they going through drug withdrawal.  You could have had to shell out thousands of dollars to hire a lawyer and missed work on so many occasions to attend court hearings that your employer warned you might be fired.

On the basis of the faulty breath test results, you too have been convicted of driving while intoxicated even with blood alcohol levels far below the legal limit.  You could have lost your driving privileges for 6 months to a year on the basis of this conviction.  You could have suffered the humiliation of informing your family and friends and employers of having been convicted of drinking-and-driving.  You could have seen your car insurance rates skyrocket as a result of conviction. And, in some cases, you could even have done some jail time.

Feeling a little bit more outraged now?

Also newsworthy — and this gets back to my original point –is the reaction of the government. Admittedly, standing on the outside looking in, I have no idea what has been going on inside either the police department or prosecutor’s office since last February, although I can imagine there have been some sleepless nights over this.

But from what I can tell, there have been two heroes associated with this story. First, there was D.C. police chief Cathy Lanier who came out forthrightly back in February to announce the initial problems with breath test results.  At the time, the problems were thought to pertain to a two-year period limited to the Metropolitan Police Department.  While I have no idea what else she might have known at the time, I’ll give her the benefit of the doubt.  I’ll assume she released everything she was aware of at the time.

But the real hero of this story – a whistleblower of sorts – is Ilmar Paegle, a retired U.S. Park Police officer who was brought in the District to take over the Breath Alcohol Testing Program. Again, we have no idea what Paegle was told upon taking over this job and what constraints he has operating under.  What we do know is that he did the right thing.  Two and a half months after taking over the program, he wrote a detailed four-page memo in which he claims the protocol to ensure the machines were properly calibrated has not been followed since at least 2000. “The calibration has to be verified by accuracy tests,” Paegle wrote, “and these legally mandated tests of [the machines] apparently have never been done.”

Finally, since no story would be complete without a villain, there is Peter Nickles and the Office of the Attorney General (OAG). [In the interest of full disclosure, I should note that Nickles and my wife used to work at the same law firm.] Given my experience at EPA, I will give Nickles the benefit of the doubt for not immediately pointing his finger at the officer who had run the Alcohol Breath Test Program before Ilmar Paegel was brought in. I still think of EPA Administrator Carol Browner throwing my colleagues under the bus at a congressional hearing, even though a year-long, independent investigation carried out by a prestigious D.C. law firm eventually exonerated them of discrimination.

But the only thing the OAG has done since the problems first started coming to light last February has been to throw up a smoke screen. As I understand it, even after the OAG was aware of the problems, it continued to accept guilty pleas on affected cases without notifying defense counsel of the problems. It apparently takes a very tortured interpretation of the government’s obligation to turn over exculpatory evidence to defense counsel.  It has dragged its feet on releasing information on the two DWI officers who are accused of tampering with evidence.  And, of Paegle’s findings, the OAG has claimed that this is just an “opinion.”

As a former government employee, I know how difficult it is to work in the public fishbowl. I know that the Washington Post and other media outlets often get things very wrong.  I also know that there are all sorts of wacky people out who are hiding behind the protections of the whistleblower legislation in order to pursue their own twisted agendas.

But that doesn’t excuse anything I have read about the OAG and its handling of this case. Its actions suggest that the OAG is more concerned with covering its own behind and with preserving the viability of the few DWI cases that remain than with re-establishing the credibility of the Alcohol Breath Test Program for the future.  And every citizen in this city will be worse off because of this.

On November 23 and December 2, 2010, I reported on the latest developments to come out with respect to the complete bungling of DWI breath test results in the District over the last ten years. Bryan Brown and Thomas Key have been leading efforts by lawyers handling DWI cases in D.C. to find out more about problems with the breath test machines. These efforts have been met with complete obfuscation by the D.C. Office of the Attorney General.

I was surprised that Mary Pat Flaherty of the Washington Post, the reporter who broke the original and more limited story last February, did not seem to have picked up on the latest developments, and I have been waiting for some news outlet to report on the story. Posted below are videos from the two news accounts that Fox News finally did last night.

I should note that respected DC attorney David Benowitz is absolutely correct in discussing the ramifications of the faulty breath test results in the first video. I should also note that the attorney in the second video mischaracterizes the options available to a person who has been arrested for DWI in D.C. The city’s diversion program for DWI offenders was eliminated last January.