Bolton went to court four times to contest the unsupportable charge that she had driven under the influence of an intoxicant.
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."
But there was no actual evidence that Bolton’s ability to drive safely was impaired. She wasn’t weaving or driving erratically, and for several reasons, the officer’s claim that he had probable cause to arrest her is suspect.
On his report, [Officer] 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 [for] impairment with a .03" blood alcohol level, Klaunig said.
The HGN has about as much scientific basis as voodoo, but even those who vouch for the test acknowledge that a person with a .03 blood alcohol content shouldn’t have “jittery” eyes -- if they did, the test would be useless as an indicator of probable cause. While Officer Fair claimed to see nystagmus in Bolton’s eyes, he may say that whenever he pulls over a driver and catches a whiff of alcohol. Officer Fair “averages more than 100 drunken driving arrests a year.” How many of those are legitimate, and how many are made to pad his arrest statistics? Bolton’s case suggests that Fair isn’t a reliable reporter of field sobriety test results.
Meanwhile, the police department’s “zero tolerance” policy assures that safe drivers, who have broken no law and who are not impaired, will be forced to waste countless hours in court, unless they give in to the extortionate demand that they spend $400 on a “social drinkers” class as part of a pretrial diversion program.
This is how the D.C. police department’s website explains the policy:
"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."
Of course, Bolton’s driving wasn’t “extremely bad,” and she had to go to court four times before prosecutors decided she wasn’t going to roll over and enter a diversion program that she obviously didn’t need. All because of a “zero tolerance” mentality that fails to distinguish drivers who are actually impaired from those who, quite legally, drive after having a glass of wine with dinner.
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.
It’s time for D.C. to get in step with the rest of the country, which hasn’t become quite this repressive. There’s simply no scientific evidence that a driver’s ability to drive safely is impaired at .03. Drivers like Bolton shouldn’t be forced to jump through hoops because the D.C. police have “zero tolerance” for drivers who haven’t actually broken any law.
