DC Prosecutors Used Questionable Breath Test Scores To Secure Guilty Pleas in DWI Cases

From [HERE] WASHINGTON - There are new questions are being raised about the methods used by the D.C. Office of the Attorney General to win convictions in DWI cases. FOX 5 has learned prosecutors used scores from decertified breath machines to secure guilty pleas in at least two cases.

Court documents show prosecutors also used questionable breath scores to win several dozen convictions and not the handful they first admitted to. FOX 5 has discovered documents showing prosecutors secured guilty pleas from a 19-year-old woman and a 41-year-old man even though the chief toxicologist said the results taken from the machine over a six-month period should not be used.

The man who pled guilty based on the results from that machine was ordered to serve six consecutive weekends in jail.

On July 7, 2010, D.C. Police arrested a man in the District on suspicion of DWI. He was tested on an intoximeter with the serial number 010814. Court records show he pled guilty on September 7, 2010.

But according to the Office of the Chief Medical Examiner, that machine was not approved for use by the chief toxicologist for a three-month period including the date of the man’s arrest.

In another case, a 19-year-old woman was arrested on May 9, 2010 and tested on the same machine. A separate document listing the same serial number shows the chief toxicologist said the results should not be used for a three-month period which includes the date of the woman’s arrest.

"I have a very difficult time understanding this," said defense attorney Bryan Brown. "The issues that have come up in terms of their failure to disclose, their failure to be above board on all these issues, I have a very difficult time understanding why they think that's OK. It's clearly not OK.”

Brown discovered not only those questionable cases, but nearly three dozen others in which prosecutors used scores they weren’t willing to introduce at trial, but routinely used in order to obtain guilty pleas.

"You cannot take a DWI plea without the government submitting in their proffer a score,” said Brown.

In a letter sent to D.C. Council Member Phil Mendelson dated on March 10 of this year, Deputy Attorney General Robert Hildum said, "I can report that, having double-checked; so far we have discovered that there were 11 cases that pled to DWI where the evidence was obtained from an MPD intoximeter. In these cases, the breath scores were not introduced in evidence.”

Brown finds this statement simply baffling.

"We see them not being forthright with the information they are providing to the defense attorneys and they are not making clear whether the evidence is valid or not,” said Brown.

A spokesman for the Attorney General’s Office says the issue is under review and they have no comment as of Thursday afternoon.