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Faulty Breathalizers Leave Defense Attorneys Breathless

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By Jonathan Wilson

D.C.'s police department is continuing its investigation into potentially shoddy Breathalyzer machines. An internal audit says some machines may have provided inaccurate results. As the investigation moves forward, defense attorneys are looking into ways they can help out convicted clients.

Jason Kalafat represents people in drunken driving cases and says he's heard from dozens of clients who want to know the status of their convictions. He's examining several former cases and deciding how to proceed.

"What is our recourse for someone who is either convicted at trial or someone who plead guilty?" he asks. "A lot of times the most critical evidence used against them, either to get that guilty conviction at trial or to secure a plea agreement, will be those Breathalyzer scores."

Naturally, Kalafat says the attorney general-the office tasked with prosecuting these violations-needs to throw out Driving While Impaired charges because they rely specifically on the Breathalyzer score. That still leaves Driving Under the Influence-a similar law that takes into consideration field sobriety tests and details from the arresting officer, like slurred speech and bloodshot eyes.

The two charges carry similar penalties: approximately $400 and six months without a license on a first offense. But Kalafat says there is a distinction for particularly high blood alcohol levels.

"In the District of Columbia, if you're Breathalyzer score reaches .2 or above, the stature requires a mandatory jail time under the statute," he says. "Because of the errors with the machines, the attorney general's office is not able to pursue that mandatory jail time."

D.C. Police and the Office of the Attorney General issued the same statement, saying the impact is limited to certain cases during a specific time frame.

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