For nearly 7 years I've been blogging about the inaccuracy and unreliability of breath-alcohol testing machines. See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.
So if they're so inaccurate, how can prosecutors convince juries to convict based upon these machines? Well, usually they don't have to: the law in most states requires the judge to instruct the jury that the machines are presumed to be accurate! See DUI and the Presumption of Guilt.
And if that presumption might be rebutted by damning facts to the contrary, well….
DC Prosecutor Under Investigation for Unethical Behavior in Prosecution of Drunk Driving Cases
Wash, DC. May 10 – FOX 5 has learned at least one prosecutor in the D.C. Office of the Attorney General is under investigation. The Office of Bar Council is looking into claims of unethical behavior in the prosecution of drunk driving cases.
As many as a half a dozen police officers and defense attorneys have been interviewed so far.
No one would talk about the investigation on the record Tuesday. In fact, the Office of Bar Council, which is the city agency that investigates attorneys, wouldn't even confirm an investigation.
But sources familiar with the probe say at least one prosecutor is under investigation for allegedly asking police officers to lie under oath on the stand.
But it goes deeper than that.
In the last several months, three D.C. Police officers, the Fraternal Order of Police along with three defense attorneys, have publicly questioned the behavior of prosecutors in the D.C. Office of the Attorney General.
Officers Ben Fetting, Andrew Zabavsky and Jose Rodriguez even took their stories to the D.C. City Council.
Back in February, an affidavit was prepared by the FOP and sent to the Inspector General in a request for an investigation. It reads in part:
“Both Officer (Jose) Rodriguez and (Andrew) Zabavsky were advised by the (Office of the Attorney General) to limit their testimony at DUI trials with regards to the problems with the Intoxilyzers.
“They were told not to answer questions about when they became aware of the problems with the equipment and told to say that they were not familiar with the problems or investigations even if they did know the answer. Both officers indicated they were unwilling to alter their testimony or perjure themselves.”
Additionally, according to the union:
“On September 27, 2010, Officer (Ben) Fetting was scheduled to testify in a DUI trial … Attorney Tamara Barnett of the (Office of the Attorney General) suggested that Officer Fetting not answer certain questions about the certification of the Intoximeters. Officer Fetting declined and when questioned … answered truthfully that he was aware that the Intoximeters had not been approved by the (Office of the Chief Medical Examiner).”…
Sources familiar with the probe say the Office of Bar Council is also looking into allegations prosecutors used scores from an uncertified breathalyzer in order to obtain guilty pleas in drunk driving cases…
The misconduct allegations began to surface after city officials revealed a little over a year ago the breathalyzers used by D.C. Police were not properly calibrated, calling into question thousands of convictions.
FOX 5 contacted the Office of the Attorney General Tuesday, but an official at the office declined to comment.
Whatever it takes to win…
(Thanks to attorney Matthew S. Kensky of Fairfax, Virginia.)