D.C. Police Chief Cathy Lanier
D.C. criminal defense lawyers have long challenged the accuracy of the breath test machine used in the District, the Intoxilyzer 5000EN, to measure blood alcohol concentrations of drivers suspected of driving while intoxicated (DWI). Even when properly calibrated, the equipment relied on a number of questionable assumptions with respect to breath alcohol as a surrogate measure for blood alcohol concentrations. And it turns out we were at least partially correct.
As I reported earlier, criminal defense lawyers handling DWI cases in D.C. Superior Court noticed toward the middle of last month that the Office of the Attorney General (OAG) was dismissing DWI charges in many cases involving the Metropolitan Police Department, while still proceeding with the related charges of driving under the influence (DUI) and operating while impaired (OWI). DWI is a per se offense; that is, in order to make out the charge, the prosecution need only prove that the suspect was operating or in physical control of a motor vehicle at the time his or her blood alcohol concentration was 0.08 or higher. In order to meet its burden with respect to DUI or OWI, the prosecution must prove that the driver’s operation was impaired by intoxication.
On February 26, D.C. Police Chief Cathy Lanier announced that the police department had discovered problems with the administration of the breath test. The Washington Post reported today that District officials have now begun a review of all DWI charges brought between October 2008 and February 2010 to look for questionable results. Writes the Post: “It is not known how many cases will be affected or how officials will resolve those that have already been adjudicated.”
People with either a pending case or a case that was adjudicated during this time should contact their lawyer to find out how their cases could be affected by this situation.