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Problems With D.C. Intoxilyzer Program Prompted Police Whistleblower Claim

by | Sep 18, 2013

Three Metropolitan Police Department officers say they were trying to the right thing when they refused to follow orders by prosecutors and the attorney general’s office not to discuss problems with the district’s Intoxylizer breath machines during their court testimony.

They did it anyway. As a result, they claimed, they were targeted for internal investigations, given low-level assignments and passed over promotions. They tried to claim protection under the D.C. Whistleblower Protection Act.

However, a Superior Court judge recently has dismissed their claim.

D.C. DUI defense lawyers are dissatisfied with the ruling. We believe this is exactly the kind of situation for which the whistleblower act was intended. The fact that these officers were allegedly unjustly penalized for their actions and now have fewer avenues of recourse is profoundly disappointing.

The lawsuit, brought by three officers, named the District, an assistant police chief and three attorneys within the Office of the Attorney General.

You may recall that the DUI breathalyzer program imploded back in early 2010, when an outside consultant revealed that the results being delivered by the machines – and used to convict hundreds of people for drunk driving offenses – was faulty. The results were skewed upward, making it seem as if their breath-alcohol content was higher than it actually was.

It’s estimated that some 400 people were convicted on the basis of those improperly calibrated tests. This forced the Metro Police to halt the breathalyzer program in March of 2010. It didn’t resume again until September of this year, when a host of new procedures was announced. In the meantime, numerous lawsuits were filed.

The Attorney General’s office doesn’t deny telling the three Metro officers not to speak on those problems in ongoing DUI court cases. However, it contends the reasoning had to do with the fact that the officers had no direct or detailed knowledge of the problems. By instructing them not to discuss these issues on the witness stand, prosecutors had only intended to keep inadmissible hearsay into pending cases.

But here’s the problem with that theory, according to the attorney who was representing the three officers in their civil case: These three were responsible for most of the DUI and DWI enforcement within the District. We’re not talking about three individuals who were circulating rumors or hearsay. These were officers who were on the front lines of this issue. They were working one-on-one with the consultant who uncovered the problems, and they were told directly by him of the issues that were coming to light. Failure to disclose those issues while testifying in criminal DUI cases, their attorney said, would have been illegal.

Judges require that witnesses tell “the whole truth” while they are on the stand. The officers were, in effect, asked not to do this, and they were punished when they refused to abide by those requests.

The police department contends that the actions taken against the officers were not retaliatory.

The officers’ attorney has said he intends to appeal.

We hope, for the sake of protecting the integrity of the whistleblowing process in the future, that they will be successful in this endeavor.

If you are facing DUI charges in D.C., contact the Scrofano Law, PC at 202-765-3175.