Case 1: 10- -00953-RMC Document19-4 Filed09 - The New ...

Case 1: 10 - -00953-RMC Document19- 4 Filed09/ 17/ 10 Page 1 of 105

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICTOF COLUMBIA

HECTOR MOLINA- AVILES,

Plaintiff ,

)

)

Civil Action No. : 10-953 (RMC)consolidated with 10 -954, 10 -955, 10 - 956 ,

10 -957, 10 -958 , 10 -959 , 10 -960, 10-1088,1096 , 10 - 1097, 10 - 1102, 10 - 1181, 10, 10-1185 , 10- 1188 , 10 - 1204 , 10-1205

10 -1207, and 10 -1214 )DISTRICTOF COLUMBIA , etal. ,

Defendants.

PLAINTIFFS CONSOLIDATED MEMORANDUM OF POINTS AND AUTHORITIES

IN OPPOSITION TO THEDISTRICTOF COLUMBIA S MOTION TO DISMISS

EXHIBIT C

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PublicHearing 07- 14 -2010

IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

- - - - - X

COMMITTEE ON PUBLIC

SAFETY AND THE JUDICIARY

NOTICE OF PUBLIC

OVERSIGHT ROUNDTABLE

Washington, D . C .

Wednesday , July 14 , 2010

The following pages constitute the public hearing

held in the above - captioned matter conducted by

Chairperson Phil Mendelson , held at the John Wilson

Building, 1350 Pennsylvania Avenue , . W . , Room 500 ,

Washington D . . before Natalia Kornilova of Capital

Reporting Company beginning at approximately 10 : 17

a

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3 Phil Mendelson, Chairperson

Robert Hildum, Witness

5 Patrick Burke , Witness

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PROCEEDINGS

MR. MENDELSON: Good morning. I ' m calling

this hearing to order. This is an oversight round

4 table of the Committee on Public Safety and the

5 Judiciary I ' m Phil Mendelson, an At- Large Member of

6 the Council and Chair of the Committee on Public Safety

7 and the Judiciary . Today is Wednesday , July 14th ,8 2010. The time is 10: 15 in the morning We are in

9 Room 500 of the District Building or the Council

10 Chambers of the Johnny Wilson Building and the subject

11 of today ' s hearing is calibration issues with

12 breathalyzer instruments and the District ' s response .

13 The media reported back in February of 2010 ,

14 the beginning of the report by WRC - TV that there was an

15 issue regarding the accuracy of breathalyzer results16 that were being used in connection with people who had17 been arrested for driving while intoxicated . Very

18 quickly several other newspapers picked up this story .

19 For instance, Examiner on February 26th of this year

20 said , " Problems with D . . ' breath and alcohol machines

21 throw DWI cases into chaos . " And the Washington Post

22 reported on February 27th , " D . . breath analysis

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1 machines questioned. "

It was, however , not until last month on June3 10th that there was reports including a front page4 story in the Washington Post, "400 drunken driving5 convictions in based on flawed tests, officials6 says . " And that article quoted D .C . Attorney General,7 Peter Nickles stating that all ten of the City ' s8 intoxilyzers had been inaccurate . That led to this9 committee deciding to have this oversight round table .

10 The purpose of today ' s oversight round table11 is to hear and receive testimony about the incorrectly12 calibrated breathalyzer instruments, how it happened ,13 and the government ' s response to the problem . In

14 February , as I said , it became known that a number of15 Metropolitan Police Department intoxilyzer instruments16 were incorrectly calibrated for the period between17 September 2008 and February 2010 . The Office of the18 Attorney General recently reported that results from19 the breath test machines potentially implicate nearly20 400 convictions for driving while intoxicated or DWI.21 Today ' s hearing will focus on the response of the22 Office of the Attorney General and the Metropolitan

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Police Department to problems with calibration and what5

2 these agencies are undertaking to prevent this from3 reoccurring.

We have two witnesses from the AttorneyGeneral ' s Office and the Metropolitan PoliceDepartment . I would ask if they would come forward andwould like to know while they 're coming forward -- the8 record in this matter will be open for two weeks . That9 is it will close at 5 : 00 p .m . on Wednesday , July 28th ,

10 2010 . So anybody who wishes to testify -- excuse me,11 wishes to submit comments has two weeks to do .12 Gentlemen , I' m going to swear you in . If you13 would each raise your right hand .

WHEREUPON

ROBERT HILDUM and PATRICK BURKE called as16 witnesses , having been duly was examined and17 testified as follows:

18 MR. HILDUM I do.

19 CHIEF BURKE : I do .

20 (Whereupon , both witnesses responded21

affirmatively.MR MENDELSON : Thank you . You may be

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seated. I appreciate each of you being here. I have2 one statement . Are each of you going to give3 statements or just one of you?MR. HILDUM : Good morning, ChairmanMendelson and OAG have submitted joint testimony6 and that has been provided this morning. I will7 summarize that testimony in an opening statement and8 then we re both available for questions.MR MENDELSON : All right. And you should10 each identify yourselves for the record.

CHIEF BURKE Good morning I'm Assistant12 Chief Patrick Burke, Homeland Security Bureau of the13 Metropolitan Police Department .MR . HILDUM : And ' Robert Hildum I ' m the15 Deputy Attorney General for the Public Safety Division16 and under that division includes the criminal section17 which prosecutes DWIS.

MR . MENDELSON : All right . Go on .MR . HELDUM : Morning, Chairman Mendelson, as20 I said, I'm Robert Hildum. I'm the Deputy Attorney21 General for the Public Safety Division and I'm22 appearing on behalf of Peter Nickles and I'm jointly

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1 presentingtestimony this morningwith Chief Burke.

Chairman, there ' s been a great deal of

3 misinformation and speculation as to the scope and

4 cause of problems - - of the problem associated with the

5 breathalyzers, which in this case were the Intoxilyzer

6 5000s . I ' ll refer to them as the " intoxilyzers" .

7 Unfortunately , at this point we must proceed as

8 cautiously as possible in discussing this matter

9 because of the pending civil and criminal litigation.

10 Before discussingwhat happened and how it

happened I do want to emphasize something to the

12 Committee and especially since the subject of the

13 hearingtoday is the District' s response I can sum up

14 the response in one word and that would be immediate .

15 The problem was identified on February 4th . MPD

16 discovered that 3 out of 13 intoxilyzers at that point17 had tested too high and were therefore unreliable MPD

18 immediately got in touch with OAG who is predominately

19 prosecutes the DWI cases in the District of Columbia .

20 The U . . Attorney ' s Office prosecutes cases associated

21 with serious injury and death.

February 4th when the problem was

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1 discovered MPD immediately pulled all of the

2 intoxilyzers out of the field. They contacted Park

3 Police and Capitol Police and asked for their

4 in using their instruments in any drunk

5 driving arrests that occurred thereafter . OAG also

6 immediately responded by instructing all of the

7 prosecutors in the office to not rely on breath scores .

MPD at that point immediately began to

9 investigate the problem and since that time, I believe,

10 and I would submit to the committee that every response

11 from MPD and OAG was well within our obligations

12 legally and ethically .

The miscalibration of the intoxilyzers; there

14 was a police officer who was in charge of the Alcohol

15 Enforcement Program from 1995 untilAugust of 2009.

16 During that time, he was thoroughly trained in the

17 maintenance of the intoxilyzer and worked with the

manufacturer CMI to be trained and to maintain those

19 instruments During that time we had 13 intoxilyzers

20 that were placed in police districts throughout the

21 District of Columbia. Beginning in September of 2008

22 as part of the routine maintenance on these

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instruments, the officer in charge of the program began

to change the motors.

February , 2010 , MPD through a grant

4 with DDOT the District Department of Transportation ,

5 was able to retain the services of a contractor to

6 assist in overseeing the program , providing technical

7 assistance specifically to the chemical testing

8 program . The contractor in question had previously

9 worked for Police and their alcohol enforcement

10 program . It was on February 4th that he discovered

11 that some of the machines were testing too high. And,

12 again , on that same day ordered that all of the

13 intoxilyzers , not just the three where it was

14 discovered they were running too high but all of the

15 intoxilyzers be taken out of the field ; and again OAG

16 was notified and we stopped relying on the scores in

17 our prosecutions

February 25th , 2010, MPD although not

19 finished with the full investigation was able to

20 identify the cause of the problem. On February 25th,

21 the Administration issued a press release OAG and MPD

22 got in touch with the chief judge of Superior Court and

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the presiding judge of the criminal section, provided

2 them with as much of an explanation of what we had at

3 that point which was , we had discovered a problem that

4 we were going to continue the investigation. week

5 after that, Peter Nickles and Chief Lanier, I was there

6 - - I think Chief Burke might have been there as well,

7 met personally with Chief Judge Sutterfield and

8 Presiding Judge Canan and explained to them what we

thought the problem was, which at that point we

10 believed it traced back to when the motors were changed

11 in the intoxilyzers .

At that point with the problem now better

13 defined and better understood, OAG went to work Our

14 first priority was to determine if anyone was in jail

15 on affected cases and there were , in fact , several

16 individuals who had cases where they were incarcerated .

17 We immediately informed the Court and hearings were

18 held In just about every one of those cases and I sat

19 in personally on a few of the hearings myself. The

20 plea to DWI was withdrawn and the individual reentered

21 a plea to DUI and I ' ll explain the differences in those

22 statues in a moment but withdrew their plea to

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DWI, they reentered a plea to DUI, and in most of the2 cases received the exact same sentence.MR MENDELSON: These were individuals with

4 Counsel?

MR. HILDUM : course . Yes , sir .6 Absolutely , Counsel was present , absolutely And we7 got those back into court , then what we did at OAG was8 we went back to the date that we believed the first9 intoxilyzer was comprised and we went forward from

10 September 2008 to February 2010 . We identified 110011 cases that involved MPD police officers . Now , there12 were times within those cases where for whatever reason13 MPD might have utilized Park Police ' s instruments or14 Capitol Police instruments . But the vast majority15 involved MPD instruments. We then went through each16 file by hand and identified the instrument in question ,17 when we believe it was compromised by the motor change18 and the miscalibration and then went through each case19 by hand to determine whether a person plead or was

20 found guilty on an affected instruments .And it ' s important to note that when this

22 first happened , had a trial pending where we had

21

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introduced evidence of the breathalyzer and the Court2 had adjourned and was in the middle of trial and had3 adjourned for a couple of weeks . We affirmatively went4 back to court and asked to withdraw that evidence5 before the end of the trial . We made a motion to the6 court and let them know that we had introduced this7 evidence that we now believe might not have been8 accurate .

we went through these 1100 files and

10 that ' s where we discovered approximately 360 . The11 newspaper reported 400 cases, but 360 to 400 cases. We12 took that list of cases ; we are currently working on13 letters to each individual attorney and the defendant14 in each case informing them that we think that the15 instrument in question was affected in their case .16 That is a time intensive job because we don ' t have a17 database with names and addresses we have to go

18 through each file. We ' re accomplishing that at about19 40 files a week we ' re hoping to be finished in the20 next several weeks .

21 In addition to that , I sent a letter to the22 Public Defender Service and to the Superior Court Trial

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1 Lawyers Association with a list of the cases and asked

2 them to inform their members as to the issues involved.

3 PDS oversees the criminal justice act , attorneys who

4 are appointed in many cases to representpeople accused

5 of drunk driving.

And then it was right around the end of May,

7 I believe, MPD had concluded its report. What MPD

was able to conclude was that the person who was in

9 charge of the intoxilyzers in September of 2008 as part

10 of the routine maintenance sought to change the motors

11 in each of the intoxilyzers. This individual consulted

12 with CMI, the manufacturer , that ' s a company out of

13 Kentucky They manufacture the Intoxilyzer 5000. He

14 conferredwith them He was having a problem getting

15 the instruments to calibrate properly So when they

16 didn ' t , he spoke with an engineer at CMI. He was given

17 advice as to how to make the instruments calibrate

18 properly. Once he received that advice, he wrote it

19 down , he recorded it, he made it part of his routine of

20 his maintenance schedule and he followed the

21 instructions of CMI.

22 Then on a rollingbasis for the next 17

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1 months he changed periodically in each of the other

2 instruments the motor in question calibrated it the

3 way he was instructed to , and then put them back into4 service . We believe that it was that changing of the5 motor and the calibration instructions that he followed

6 that caused the problem . What happened in February of

7 2010 is , I ' ve said , MPD through a grant was able to

8 retain the services of a contractor for technical

assistance The individual who was in charge of the

10 intoxilyzers had transferred out so they were getting

11 technical assistance from this contractor Unknown to

12 him were the procedures that had been followed from CMI

13 and he proceeded to do tests under protocols that he

14 was familiar with and at that point he discovered that

15 the tests were running too high ; and again that ' s where

16 we were informed and we reacted immediately .

17 The conclusion of the report is that the

18 officer in question did not act maliciously , did not19 act purposely, had no intent to try and create higher

scores than were necessary or to do anything to the

21 machines other than maintain them in the manner in

22 which he was instructed Once MPD began this

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investigation we reached out to CMI and asked for

2 assistance . Some assistance was given but then very3 quickly CMI declined to participate in the4 investigation any further , which is unfortunate because

5 it left a lot of answers -- a lot of questionsunanswered.

So that ' s where we are on where we believe

8 the problem was caused . The important thing about9 prosecuting drunk driving cases in the District of

10 is that the intoxilyzer results - - the breath11 results are only one piece of evidence that make up the

prosecution And in fact , there are three different

13 ways that a person can be convicted of drunk driving in14 the District There' s DWI Driving While Intoxicated;

15 DUI Driving Under the Influence ; and OWI, Operating16 While Impaired . Interestingly enough , DWI and DUI are17 in the exact same statute and carry the exact same

18 penalty. Normally all three are charged in any one19 case . The primary difference is that under DWI and20 DUI, those convictions can be used as enhancements in21 other jurisdictions . The OWI traditionally cannot be .22 a person gets a OWI in the District of Columbia

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and subsequently gets another drunk driving charge in2 Maryland, or any other jurisdiction , that OWI charge3 cannot be used to enhance that case as a second4 offender or something like that .Traditionally the DWI is proven with the6 breath scores That establish that the person was7 driving the automobile and that their breath scores8 were . 08 or above. The DUI - -

MR MENDELSON : There ' s a blood test that10 could be taken .11

MR HILDUM There can be a blood test12 CHIEF BURKE : Or urine.MR. HILDUM : Or urine as well.MR. MENDELSON: Is that ever required?MR . HILDUM : It' s generally - - Chief, why16 don ' t you answer that one

17 CHIEF BURKE : Typically , we'lltake the urine18 or blood in the event of a crash If a person is19 unable to blow into an intoxilyzer or breath testing20 instrument, or for instance, if someone were to exhibit21 symptoms of impaired driving and they were to -- let' s22 say on their first test , blow a score that was

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inconsistentwith their perceived level of impairment.

2 Then we might believe that drugs are involved also and3 would take urine or blood to look for that additional4 factor causing the impairment.

MR . MENDELSON : Now , the blood and urine

6 tests are not implicated at all with this issue that

7 we ' re discussing here today ?

CHIEF BURKE : That ' s correct. No, sir.

MR . MENDELSON : But the blood and urine tests

10 are - - what I ' m hearing then are sometimes taken but

11 most often not?

CHIEF BURKE: Correct.

MR. HILDUM That ' s correct, and I think

14 that ' s one of the reasons why cases involving death or

15 serious injury have not been affected because normally16 in those cases they will take blood and urine In

17 fact , we had one case where we discovered that we had

18 gone to trial We had introduced the breathalyzer

19 scores and we, of course, informed the court of that

20 and the court recently sent back an order saying that21 they had reviewed the tape of the trial and that we had

22 also in that case introduced the blood scores . And in

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1 fact , it was a case I personally reviewed to determine

2 whether we should bring it back to court and I did not

3 see anything in the file that indicated blood scores

4 but I was only looking for the breath ticket . But it ' s

5 interesting that in that case the conviction for DWI

6 will stand because there were blood scores.

So under DUI rely upon police officers - -

generally a police officer ' s testimony involving the

9 standard field tests which Chief Burke can

10 speak to personally . He' s been trained in it and Chief

11 Burke also used to be in charge of the Traffic

12 Enforcement Program But other evidence can be slurred

13 speech , blood shot eyes , erratic driving and then the- -

14 what they call the , the Standard Field Sobriety

15 Test

the 1100 cases I personally reviewed and

17 what we did was we took them and we divided them up

among the attorneys so that we could more efficiently19 review them but I personally reviewed about 120 or 130 ,20 I think . In each and every case where there were21 breath scores, were also evidence of22 driving , in many instances accidents , and other

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1 evidence that the person was driving under the

2 influence of alcohol. So while these cases may be

3 affected because we relied upon scores, they are not

4 the only evidence that we rely upon in these

5 prosecutions And I think that ' s very important to

recognize .

One other thing that -- and I think this is

8 obviously very, very, important - -

MR . MENDELSON : Let me just interrupt again .

MR HILDUM: Yes, sir .

MR MENDELSON : You said DWI carries the same

penalties as DUI - -

MR HILDUM : That ' s correct .

MR MENDELSON Isn ' t DWI more serious

15 offense though ?

MR . HILDUM It ' s in the exact same statute

17 and carries the exact same penalties.

MR . MENDELSON: The elements are different .

MR . HILDUM : Yes, the elements are different .

20 I think in the hierarchy for whatever reason, the

21 hierarchy in responsive verdicts and in charging, DWI

22 is generally considered the most serious, DUI is next

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and then OWI But why DWI is more serious than DUI, I

2 don ' t know .

MR . MENDELSON : What are the additional

4 elements for DWI?

MR . HILDUM : Well , we have to prove that they

6 were operating the vehicle above . 08 . For DUI, we can

7 use other evidence of poor driving , and the SFSTs and

8 the other observations by the police officers.

MR . MENDELSON : It' s only with a . 20 that

10 there' s the mandatory minimum sentence?

MR HILDUM: I ' m sorry, sir ?

MR . MENDELSON : It' s only with . 20 blood

13 alcohol content that there ' s the mandatory minimum14 sentence ?

15 MR. HILDUM The two - - actually mandatory

16 minimum , sir, .20 and above, .25 and above. I believe,

17 . and above is five days mandatory minimum ; . 25 and

18 above is ten days mandatory minimum That ' s when those

19 mandatory minimums kick in Yes, sir .

20 MR . MENDELSON : And just for point of

21 comparison , this isn ' t so much a question on my part

22 but just so anybody who' s watching this understands,

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. 08 opposed to under the law per se driving

2 while impaired?

MR. HILDUM : That ' s correct . Yes, sir .

MR MENDELSON : So roughly three

5 times more alcohol in the blood

MR . HILDUM: Yes, sir .

MR MENDELSON on , please.

MR. HILDUM: When MPD pulled all of the

9 intoxilyzersout of the field they immediately started

10 to consider the intoximeter . You know , we have the

11 intoxilyzer, now the intoximeter. The intoximeter is a

12 more advanced technology. It requires less

13 maintenance It can be calibrated through - - and I ' ll

14 let Chief Burke talk a little bit more about that but

15 it can be calibrated by computer assistance from the

16 manufacturer and MPD, I believe , it was by March ? Was

17 it March 25th or so ? By March 25th or so they had

18 three intoximeters in service and now all of their

19 district stations have intoximeters which is a better

20 technology . everything has been replaced and I

21 think that ' s significant going forward and certainly

2 the miscalibration was unfortunate It' s caused a

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221 great deal of -- I think I have to say stress on staff.2 A great deal of work on our part but we certainly3 reacted immediately , ethically, and well within the4 bounds of our legal obligations and that concludes5 my formal testimony and certainly we're available for6 any questions you might have, sir.

MR. MENDELSON : Now , who is the officer who8 was in charge of the intoxilyzers ?

CHIEF BURKE: That was Calvin King10 who ' s since been assigned outside of the Traffic11 Enforcement Branch .

MR MENDELSON : So he' s still with MPD ?

13 Officer King?

14 CHIEF BURKE: Correct .MR . MENDELSON : And his rank is officer ?

15

16 CHIEF BURKE: Correct.

17 MR MENDELSON And was he reassigned within18 MPD because of this problem becoming identified ?

CHIEF BURKE: . He had actually requested19

20 a transfer

21 MR . HILDUM Before the problem was22 identified.

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23MR MENDELSON : When did he transfer ? ........

CHIEF BURKE : He transferred to our Forensics

3 Scientists Division I believe it was - - we have the

4 exact date in the testimony.

MR HILDUM : I think it was August of 2009 .

6 He was transferred to the Forensic Unit .

CHIEF BURKE : Correct .

MR . HILDUM : So he had run the program

9 actually from 1995 to August of 2009 . When he left , he

10 had left instructions for the officers who came after

11 him how to calibrate and maintain the instruments and

12 then it was in February of 2004 that the contractor

13 came on and discovered that there was a problem .

14 CHIEF BURKE: And that date is correct,

15 August of 2009 .

16 MR . MENDELSON : I ' m sorry. What' s that ?

17 CHIEF BURKE : That date was correct , August

18 of

19 2009.

20 MR MENDELSON : - gosh , I thought I had

21 heard that he transferred in January and it sounded

22 like there was this connection between his transferring

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and the problem being discovered and so that clearly is

2 not the case

CHIEF BURKE: No, sir .

MR. MENDELSON: And there was an internalinvestigation by into this problem and itexonerates Officer King?

CHIEF BURKE: It did not exonerate It found

8 based upon the evidence they had, insufficient facts

9 and once again as Attorney Hildum stated that there was

10 no malicious intent, that he was following the

11 instructions that he received from the manufacturer and

12 it ultimately worked out that the instruments according

13 to him were calibrating properly based upon those

14 instructionsthat he received. We subsequently learned

15 through our former Park Police employee , DDOT contract

16 employee to the MPD that that was not the case .

17 MR . MENDELSON: Can we have a copy of this

18 report, the May report ?

CHIEF BURKE : I can check with internal

20 affairs on the accessibility of that investigation .

MR MENDELSON : Okay So you ' ll let us know

22 but we would like a copy of that report .

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MR HILDUM : I mean , it ' s not very satisfying

2 to hear the result , insufficient facts . I think it' s a

3 term of art . It' s a legal term . It ' s one of the

4 standards they use Part of the reason that it was

5 determined to be insufficient facts was that CMI, the

manufacturer declined to assist in the investi

7 However, everything we know and everything we ' ve seen

8 is that there is simply no malicious intent or intent

9 of any kind to calibrate these machines improperly .

10 MR. MENDELSON : And I understand that in

11 their report , when they do an investigation , they have

several conclusions they can reach and one is them

13 insufficient.

MR HILDUM : Yes, sir

MR. MENDELSON: I understand that. Why is it

16 that CMI refused to participate? This was in February

17 after the problem was known ?

MR HILDUM : We contacted CMI in February - -

19 it was mid- February after this, asked for their

20 assistance in coming to the District of Columbia.


MR. HILDUM : They did, in fact, send an

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1 engineer. When he came to look at the instruments, he

2 worked on the instruments but declined to answer any

3 questions from MPD or IAD, the IAD investigators,

4 regarding the calibration or anything that may have

5 been communicated to Officer King. Subsequent to that ,

6 we got in touch with the general counsel for CMI, asked

7 for their assistance. They recognized Officer King,

8 said that they had worked with Officer King for years,9 that Officer King had relationships with the employees

10 at CMI. And, in fact , I remember this specifically

11 that one of the engineers at CMI had passed away and

12 that Officer King had gone to his funeral . They had a

13 long standing relationship. It was indicated to us

14 that they would be forthcoming . Within the next day or

15 two , I received an email stating that they would not be

16 able to assist us and that they would not make any of

17 their employees available to us and part of the reason

18 was the fear of litigation .

MR MENDELSON Are you planning on suing

20 them ?

21 MR . HILDUM : I can' t speak to that . That ' s

22 another division We have been sued I can ' t speak

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what their motivation was, that' s what they informed

us.

MR . MENDELSON you aware of any

initiative within your office to sue them ?

MR. HILDUM I am not The lawsuits that

6 have been filed so far , I believe, there are a dozen - -

MR . MENDELSON defensive to the

8 district.

MR . HILDUM : I ' m sorry ?

MR . MENDELSON : Are defensive to the

district. If lawsuits filed so far are defensive to the

12 district as opposed to the district filing suits.

MR. HILDUM : Yeah . They ' re filed against the

14 District , that ' s correct . Those are still in the

15 pleadings stage and I am - - I use to work in the civil

16 division . I don ' t anymore. So I am not sure what

17 their strategy is going forward or how they are going

18 to answer those

19 MR MENDELSON : But I ' m curious here why CMI

20 would clam up ? We bought these machines from them ?

MR. HILDUM : Correct .

MR. MENDELSON : Did we have an ongoing

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contract with them ?

MR . HILDUM: I believe we did , that' s part of

3 the reason why Officer King was able to - - I mean , he

4 had a long standing relationship with them and when he

5 needed help , he called and he got it. So, yes.

MR . MENDELSON: wouldn ' t our contract

7 obligate them then to help when you called on them for

8 assistance in February ?

MR. HILDUM: I can ' t speak to what it would

10 obligate them to do I know what they declined to do

11 and unfortunately I can do a lot of things . I can ' t

12 make them assist us and that' s , I think, the issue that

13 we have going forward with all of the litigation that

14 may be facing

MR MENDELSON Chief Burke, have you worked

16 with CMI?

17 CHIEF BURKE: have not worked directly with

18 CMI However, we ' ve had a long standing contract with

19 CMI dating back to at least ' 95 it sounds like.

MR . MENDELSON : Were your offices been able

21 to contact them and get assistance

CHIEF BURKE : Throughout that entire time



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29

period specifically, King was assigned to that

2 unit ; once again had a long standing relationship with

3 CMI

MR . MENDELSON : But this is in February when

5 choose to stop assisting ?

CHIEF BURKE: Correct and that ' s upon the

7 commencement of the investigation . At a certain point

8 they , I believe, were given legal advice not to

9 cooperate any further, is my understanding.

MR . MENDELSON: Why was Officer King changing

11 motors in 2008 that the result of a consultant ' s

12 report?

MR . HILDUM : I don ' t know if it was a

14 consultant' s report My understandingwas that these

15 instruments are , you know a number of years old.

16 Officer King actually as part of the routine

17 maintenance of the instruments, every 90 days would

18 pull them out of the District stations, as per his

19 training, he would literally take them apart and clean

20 them . And , you know , the use on some of them as it was

21 described to me was the filters would have debris in

22 them . So he would take them apart . He would

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30

meticulously clean them The air tube he would clean - -

2 he would air dry it and then he would put it back

3 together and recalibrate it and test it for accuracy

4 and then he d put it back into the Districts; and then

5 apparently as part of maintaining these instruments,

some of them , I think are required upgrades which - -

CHIEF BURKE : And they require upgrades .

MR. MENDELSON I ' m sorry I didn ' t hear

9 you.

CHIELF BURKE That the motor upgrades were

11 part of the routine maintenance to make sure that the

12 equipments remained functional.

13 MR. MENDELSON : Okay So he' s pretty

14 regularly taking them apart, reassembling, cleaning

15 them , reassembling them and recalibrating ?

MR. HILDUM Correct. For at least 14 years .

MR . MENDELSON these machines - - were

18 these machines all 14 years old?

19 CHIEF BURKE I ' d have to get the dates on

20 those. A lot of them were old machines though or

21 instrumentsas our technicianswould call them .

22 MR . MENDELSON But the motors , again , was

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there a consultant' s report in 2008

CHIEF BURKE : A consultant' s report ?

MR MENDELSON

CHIEF BURKE: I believe it would have been a

requirement or a request to upgrade the motors to keep

6 the instruments in service .

MR . MENDELSON And who would that request

8 have come from ?

CHIEF BURKE : I would image that it would

10 come and I ' m just guessing at this would probably come

11 between a conversation - - from conversation between

12 Officer King and CMI pertaining to the instruments .

13 MR MENDELSON : Has there been any consultant13

14 who' s looked at these - - looked at the program or

15 looked at the machines

16 CHIEF BURKE : During that time or since this

17 time?

18 MR MENDELSON : I asked at any time.

19 CHIEF BURKE : At any time ? Well, obviously

20 in February when we brought in someone to look at the

21 Chemical Breath Testing Program that ' s when a lot of

22 these issues were with these specific instruments were

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32

discovered

MR. MENDELSON: What about before then ?

CHIEF BURKE : Prior to them ? Most of the

contact would be between CMI and our intoxilyzer

5 technician, Officer King.

MR . MENDELSON: So any - - so you' re not aware

7 of any consultant ' s report prior to this one ?

CHIEF BURKE : No other separate consultants.

9 Most - - the United States Park Police transitioned to

10 intoximeter prior to us doing so but many other

11 agencies were using intoxilyzer at the time.

12 MR. MENDELSON: Okay. So the 2008 replacing

13 of the motors would have come about probably but I ' m

14 hearing from you is you ' re not certain . But probably

15 as a result of the manufacturer ' s recommendation .

MR. HILDUM : Sure . Absolutely . Because the

only way he ' s going to replace the motors is by, I

18 would assume , consulting with CMI and getting the

19 specifications for the motors or even the motors from

20 CMI but we haven ' t specifically looked at that .

21 MR . MENDELSON In an April 1st , 2010 memo to

22 you , Chief Burke , and it lists the ten instruments . I

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3 3

want to call them machines. I guess I have to call

2 them instruments and I believe it says the discrepancy

3 for each was discovered on February 4th but the dates

4 of the calibration discrepancy are different .

For instance, the first instrument which ends

6 in number 71 It says, dates range of calibration

7 discrepancy July 30th , 2009 to October 27th , 2009.

CHIEF BURKE: Those are referringto the

9 dates when the motors for those specific instruments

10 were worked on . So while the initial errors were

discovered February 4th , a subsequent review looked

12 back at the dates when those motors were changed . So

13 that once again indicates the times or the dates that

14 the motors were changed per specific instrument .

MR. MENDELSON: Well, let me pick another

16 one . The instrument number ends in 350 . Dates range of

17 calibration discrepancy , February 20th , 2009 to

18 February 4th , 2010 . So what you ' re saying is that the

19 motor would have been changed on that one around

20 February 20th, 2009 where as the first one I read it

21 would have been changed - - the motor would have been

22 changed around July 30th, 2009 ?

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34

CHIEF BURKE : That ' s correct . Yes , sir .

MR . MENDELSON : How do you know that the

3 discrepancy doesn ' t predate the changing of the motors?

CHIEF BURKE : I think I ' ve heard that

5 argument that you can ' t know . What we know is that

6 prior to that we had protocols that were designed over

7 the years with consultation of the Chief Medical

8 Examiners Office and with Calvin King' s training and

9 that as far as we can tell that prior to the motors

10 being changed they were operatingas they should have.

11 It is only after he receives instructions from CMI

12 how to calibrate the instruments that we have questions

13 as to whether they ' re operating properly .

14 MR MENDELSON: But my impression is that the

15 motor changing was part of a periodic - - was part of

16 the periodic maintenance The motors didn ' t change

every time but the manufacturer from time to time would

18 suggest upgrades or in the case of the motors , I guess ,

19 replacement. So in the 14 years that these machines

20 were around the motors could have been replaced before.

21 you know for a fact that they weren ' t ?

MR . HILDUM At this point, no sir. I ' d be

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35

1 speculatingmyself as to what the exact maintenance

was . I know that and what ' s important, I think, is

3 that when we went back to look at when the motors were

4 changed had very meticulous records that we were

5 able to find and that Officer Kingmaintained and I

6 think those records go back a number of years .

MR . MENDELSON: Chief ?

CHIEF BURKE: I ' m not aware of the motors

9 being changed at any time before that .

10 MR . MENDELSON: Before?

CHIEF BURKE Before these incremental time

12 periods delineated?

13 MR. MENDELSON : In 2008 .

14 CHIEF BURKE : Correct .

15 MR . MENDELSON I guess the question that

16 comes to my mind is that there ' s the recalibration

17 that ' s required every three months but what about an

18 accuracy test ? I don ' t hear that mentioned . Why

19 wouldn ' t there have been accuracy test done separately

20 from the recalibration ?

21 MR . HILDUM : According to , he

22 did do accuracy tests When he took them apart , put

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1 them back together and he recalibrated it, he would do

2 an accuracy test before he put it back out into the

3 field. The accuracy test was not part of the protocols

4 that were followed by but he did them anyway .

MR . MENDELSON : Now the accuracy test would

6 be - - would involve using a solution, it would produce

7 known result, correct? Chief Burke? You' re probably

8 close to this than Mr Hildum .

CHIEF BURKE Yeah I believe you ' re talking. . . . . . . . . . . . . . . . . . . . . .. . .. . . . . .. . . . . . . . . . . . . . .. . . . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . . . .. .

10 about there are simulator checks that are done on a

11 regular basis where the instrument measures a

12 concentration of alcohol based upon a simulator

13 and if it measures within a certain range than

14 it is determined that the instrument is working

15 properly.

16 MR . MENDELSON : In other words, just so

17 people understand what we ' re talking about . There ' s a

18 solution that ' s designed is - - what do I want to say ,

19 solution that is concocted that is known to produce a

20 result of let ' s say . 05 BAC.

CHIEF BURKE Correct .

MR . MENDELSON: And then that ' s put in the

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1 machine, I guess, the gas from that is put in the

2 machine and then the machine reading is looked at and

3 it should say . BAC

CHIEF BURKE: .

MR. MENDELSON : That would be what you ' re

calling the simulator test ?

7 CHIEF : Correct. And if that, once

8 again, if the simulatorwould over a period of time

9 degrade to a certain value we would either change the

10 simulator solution or once again put the intoxilyzer

11 out of service until we had a proper solution and made

12 sure that everything was working correctly .

MR . MENDELSON : Okay . So this is two ways of

14 testing these machines . Once is to recalibrate which

13

...

.

..

.

..

..

15 did every three months and the other is the

16 simulator , the simulator test ?

MR HILDUM Correct .

MR MENDELSON : Now we know looking back that

19 the recalibration was wrong and MPD ' conclusion was

20 that it was not intentional, it was not malicious , it

21 was not in bad faith but the simulator test should have

22 caught it. Why didn' t it ?

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38CHIEF BURKE: That I am not certain of.

MR MENDELSON : I think that ' s a really

3 important question here and it speaks to - - it really

4 speaks to the fundamentals of accurate, forensic

5 testing. Correct ?

MR . HILDUM : .

MR . MENDELSON : Give me a second .

( Pause.

MR MENDELSON: I ' m sorry about that .

MR . HILDUM: Yes, sir .

MR MENDELSON: I ' m just a little confused

12 and I 'm not quite sure where to go . An accuracy test

13 is a double check on the calibration . We know , looking14 back, that the calibrations were inaccurate I think

15 if I remember correctly to 2008 , I ' m not clear why

16 you ' re confident that they were accurate before 2008

17 but the accuracy test is a double check on that . And I

18 don ' t understand either why it didn' t happen or why it

19 went wrong ? If the accuracy test was done it either

20 identified that the calibration was wrong and we know

21 that the calibration was wrong or else the accuracy

22 test was inaccurate unless the accuracy test wasn ' t

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39

1 done. I mean, those are the only three possibilities,

2 ' cause the one known fact here is that the calibration ,3 the recalibration , was wrong going back at least to4 2008 .

CHIEF BURKE : Well according to Officer King

6 when he followed the manufacturer ' s specifications or

7 the recommendations which he documented the

8 instructions he was giving that the instruments did in

fact calibrate properly . Now , it is very technical, I10 understand . But there is - - the simulator tests aren ' t

11 the same as accuracy tests So there is some -

12 MR . MENDELSON : How are they different ?

13 ' Cause I thought you were saying simulator while I was

14 saying accuracy and I thought we were saying the same15 thing. They ' re different ?16 CHIEF BURKE : That is my understanding and

17 Rob might be able to elaborate a little bit but it is -

18 - I understand it is very technical .19 MR. HILDUM : Well, let ' s back up for one

20 second and hopefully this will help a little bit. Under21 the . to introduce the breathalyzer results, we22 need a technician that will certify that the breath

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40

1 test was conducted in accordance with the

2 manufacturer' s specifications and that the equipment on

3 which the breath test was conducted has been tested

4 within the last three months and has been found to be

5 accurate . Now , it ' s that three month requirement that6 is the reason why Officer King pulled the instruments

7 in every 90 days , cleaned them recalibrated them and

8 then according to Officer King he would , in fact , do9 the accuracy tests. As far as the best we can know at

10 this point is that Officer King after the motor changes

11 was following CMI' instructions. It ' s only when the

12 other contractor came in who followed instructions he

13 was familiar with that he was able to discover the

14 problem.

15 MR. MENDELSON : I get that . But that strikes

16 me as a calibration exercise. I understand it, the

17 machines are designed to be calibrated to produce an18 accurate result .

19 MR HILDUM : Correct.

20 MR MENDELSON: Separately there ' s a test

21 that can be done that will produce a known result if

22 the calibration is accurate It ' s a different way of

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Capital Reporting CompanyPublic Hearing 07- 14 -2010

1 checking the validity of the machine.

MR HILDUM Correct

MR MENDELSON: What you cited, Mr. Hildum,

4 is the D . . that says every three months and I ' m

5 not sure that the says calibrated or check for

6 accuracy but I ' m not questioning whether the was

7 met . I ' m trying to understand why there - - if there

8 was a double check available, the double check

9 absolutely had to have caught the problem if the double

10 check was done correctly .

11 MR HILDUM : As best we know the double

12 check done by Officer King was done per the

13 instructions from CMI. Now , when you ' re talking about

14 the solutions - - and again this is technical and well

15 beyond my expertise but there are different values,

16 there are manufactured solutions that you get There

17 are different values - -

18 MR MENDELSON : And did we get those

19 from the manufacturer or did we manufacturer

20 them ourselves ?

21 MR . HILDUM It ' s another manufacturer It'

22 another laboratory In the calibration process you put

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Capital Reporting CompanyPublic Hearing 07 - 14 -2010

1 in - you calibrate it, you put in the different

2 values from the solutions. He put in a different value

3 than he had before that per his instructions. And ,

4 again, we ' re getting technical - -

MR. MENDELSON : I know , but that sounds like

that ' s part of the calibration phase .

MR. HILDUM : But when he calibrated it, he

8 followed the instructions from CMI, from my9 understanding as to what values to put in and how to do

10 the accuracy checks. The accuracy checks that11 King did , according to Officer King resulted in12 accurate - - in what he believed to be accurate

13 readings we , MPD during the investigation

14 brought in a consultant from Virginia and she - - I

15 can ' t remember her exact title but I think she works

16 for the Virginia Department of Forensics . I mean , a

17 very highly qualified outside person came in, listened

18 to Officer King, and looked at the documentations,

19 looked at the documentation and then at the end of that

20 said , " I got to hear from CMI before I can make any

21 call on this one way or another . " And the problem was

22 that CMI -- and the exact date of that was , I believe,


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CapitalReporting CompanyPublic Hearing 07- 14- 2010

March 10th They had stalled answering our requests

2 until March 10th and then on March 10th finally said,

3 " Sorry, we can ' t help you . We' re not going to. "

So your questions are very good ones, the

5 problem is that we seem to have a hole in our ability

6 to determine exactly, you know , what happened with the

7 accuracy checks that Calvin King said that he had done

8 after calibrating the instruments It' s interesting

9 that the statute is very broad in terms of saying that10 every 90 days we have to show that they tested

11 accurately lot of other jurisdictions codify how

12 you prove accuracy or they require - - they require

13 regulations a certain extent , MPD did do

14 regulations when they went to OCME years ago , developed

15 protocols that have been well known for the last 15

16 years or as to how to establish the accuracy checks

17 Park Police has their version of how they prove

18 accuracy within the last 90 days and Capitol Police has19 another version of how they do it. You know , as far as

we know everything was done properly . Everything was

21 accurate These had been challenged in court for years

22 and prior to the motor change we have as much

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confidence in them as we can .

MR. MENDELSON: I think you said earlier that

3 Officer King kept meticulous records ?

MR HILDUM That ' s my understanding, yes .

MR MENDELSON that correct , Chief Burke ?

CHIEF BURKE : I believe he kept records on

v7 his work on the specific instruments instructions

8 as far as simulator checks and anything along those9 guidelines, I ' m not certain on that I think your

10 question really goes to going forward though . What do11 we do to ensure accuracy on essentially every single12 time we use an intoximeter going forward? And those13 are protocols that we have worked with our contract

14 employee to set in place and also have words just to15 ensure a set of checks and balances essentially with

the Office of the Chief Medical Examiner Office

essentially give them oversight of the program to make18 sure they ' re reviewing protocols on whether it' s

19 calibration , accuracy , the instruments , our training ,20 our processes. So once again it' s more than one - - or

21 multiple technicians working on the process . It' s

22 multiple agencies that is something that we have

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1 set in place. We do have assigned MOA with the OCME.

MR . MENDELSON : What ' s the date of that ?

CHIEF BURKE This was - - Rob do you have an

4 exact date?

MR . HILDUM : June 22nd, 2010, it was signed

6 by Chief Lanier (ph ) and Dr. Pierre- Louis ( )

CHIEF BURKE : And just give you a brief

8 overview of the responsibilities, delineated in

9 this specific . It requires that provide the

10 OCME with written procedures for submitting specimens

11 for toxicological analysis . OCME is also providing

12 expert testimony about the analysis at the request of

13 the prosecutor ' s office that includes chain of custody

14 and interpretation of results.

15 OCME will also be providing scientific and

16 limited administrative oversight of our breath testing

17 program and they already have oversight of our urine

18 and blood testing They ' ll also review and approve all

19 the revisions of our operator training plans, our

20 operator guidelines , evidential breath testing

21 protocols, instrument recertification, accuracy testing

22 procedures , instructor certification requirements and

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46operator certification requirements. They ' ve already

2 agreed to take a roll in review and approve all of our

3 instructors and our operators to help outside of our4 instructors and operators technicians Provide

5 inspection of any instrument , quality control records

6 used in conjunction with the breath alcohol testing

program .

Also review and approve any evidential breath

9 instrument certification or recertification in

10 conjunction with the breath alcohol testing program

11 That includes certification reports from both the

12 providers of standards for evidential breath testing

13 instrument calibration . They ' ve also agreed to provide

14 expert witness testimony pertaining to our program

15 Pharmacology and the effects of alcohol consumption and

16 they can also designate MPD employees to provide such17 witness testimony as long as that individual has

18 sufficient experience and training in alcohol

19 pharmacology and /or breath alcohol testing and that ' s20 how -- currently a five year MOA that we' ve designated

21 with them .

MR. MENDELSON : Can we have a copy of that ?22

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CHIEF BURKE : Yes , we can get that to you .

MR . MENDELSON : And is there any reason why

3 that would be confidential?

CHIEF BURKE : I can ' t see that

certainly check with general counsel but if we are

6 able absolutely , we ' ll get that to you .

MR MENDELSON: Well that was actually two

8 different questions. One was, " Can we have a copy ?"

9 And you said, " Yes. " And then separately I , " If

10 it was confidential, " if somebody asked us for a copy .

CHIEF BÚRKE : , if we could get that to

12 else ? I ' ll have to address that with Rob ' s

13 staff

14 MR MENDELSON: Okay But I would like a

15 copy . I think there were a couple of questions that

16 were kind of left hanging. One was, for the simulator

17 test , did we use an independently manufactured solution

18 or did we manufacture our own solution ?

19 CHIEF BURKE : I understand , believe, the20 laboratory is Guth Laboratories provided that solution ,21 if my memory serves correct .

22 MR MENDELSON: it was not MPD mixed

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48

CHIEF BURKE : Correct or CMI - - or CMI was an

2 independent laboratory Guth , I believe, once again

3 was that manufacturer.

MR. MENDELSON : And it' s your understanding

5 that the manufacturer of the solution, the

6 manufacturer ' s recommendations for how long it would be

7 viable or followed ?

CHIEF BURKE : I believe til it would degrade

9 to a certain standard and as Attorney Hildum mentioned

10 that might be different standards for different

11 agencies.

12 MR MENDELSON: I didn ' t follow that one at

13 all I would assume that it would have like an

14 expiration date . The solution once - -

CHIEF BURKE : Well, typically, let ' s say if

16 we have a . 08 solution. My understandings if it would

17 degrade to , let ' s say, below a .05 outside of a certain

18 level of accuracy within that range than it would be - -

MR. MENDELSON : But how would you know

20 whether it degrades ? Wouldn ' t it be a function of

21 time?

MR. HILDUM The protocols that were in place

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49

require that twice within 24 hours of a subject taking

2 the breathalyzer test that a simulator test would be

3 done . As long as the simulator test was within

4 each other than the instrument was deemed to be

5 operating properly .

you would put it in the field with a . 10

7 solution for example Over time the simulator test

8 would read . 08 or .07 as long as they were within . 10

9 of each other, it was deemed to be operating properly.

10 Once it degraded below . 05, Officer King was notified

11 and he would come out and he take the - - either the

12 instrument into to be serviced or he would replace the

13 simulator solution .

14 MR MENDELSON : the test isn ' t against the

15 label on the solution , the test is against the solution

16 being used twice within 24 hours?

17 MR HILDUM : That ' s correct And again this

18 is allwithin - -

MR MENDELSON: Am I understanding that

20 correct?

CHIEF BURKE: That ' s my understanding.

MR HILDUM: This is all within the 90 day

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50period because it' s important to understand the context

that every 90 days you pulled them out, recalibrated,

3 tested them and then put them back in the field .

MR MENDELSON Did Mr Praegle [ sic] who did

5 the report on the beginning of February , did he have a

6 written report ?

MR HILDUM : I don ' t know that he did .

CHIEF BURKE : A number of emails, I ' m not

9 sure if there was ever complete written report .

10 MR . MENDELSON : ' Cause I was going to ask for

11 a copy of the report . If there is - - if he did issue a

12 report, would you provide it?

13 CHIEF BURKE : There would be the MPD report ,

14 obviously , which we ' ll check on - -

15 MR HILDUM : I believe most everythingwas

16 subsumed into the IAD report but we can check on that .

17 CHIEF BURKE : Correct .

MR . MENDELSON: Okay , if you would . If it ' s

19 separate report , I would like that from Mr . Praegle

20 And, again, why would you decide after 14 years to hire

21 a consultant? I had asked if there was a consultant in

22 2008 and you said no but there ' s a consultant in 2010 .


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CapitalReporting CompanyPublic Hearing 07- 14 - 2010

Why ?

CHIEF BURKE : Well, obviously we had a seniortechnician who ' s been really the one " go to" guyessentially who' s been operating this program for , in

essence , fourteen years . So with his transfer to a

6 different division , , it was - I think

7 critical for us to bring someone in who ' s had years of

8 experience as well as our employee did with the United

9 States Park Police to come in and help us to work on10 protocols to ensure that we ' ve got people . And really11 I think the key thing for us was to make sure we' ve got12 multiple people trained to handle this equipment and to

13 be essentially experts in dealing with these

14 instruments in the event that we lose one person We ' ve

15 got to have checks and balances even with in - house .

16 MR MENDELSON: Well, that makes sense but

17 then why didn ' t you bring the consultant in last

18 September since Officer King left in August

19 CHIEF BURKE: That ' s something that obviously

20 through procurement processes and hiring and this is ,

21 once again , not something we can just train an officer

22 to jump into It' s a very we found out , a very


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technical field.

MR MENDELSON : Well, yeah , but this is the

consultant I ' m talking about . training ' s not the

4 issue.

CHIEF BURKE: Correct And that ' s something

6 we worked through DDOT, District Department of

7 Transportation to bring someone in Once again , it

8 just takes time to bring people into the system .

MR. MENDELSON : All right. Let me ask you

10 about OCME ' roll What authority did OCME have to

11 delegate its responsibility to ? . Hildum ?12 MR. HILDUM : Under the protocols they -- as I13 recall them , I don ' t have them in front of me but they14 did , in fact, I think delegate Officer King to - - I

15 can ' t remember the exact phrasing but they delegated to

16 him and I think that to be the technician in charge of

17 the program but I don ' t have them in front of me to

18 give you the exact language. I don ' t - - I , obviously - -

19 not obviously but I was not around when these

20 protocols were written many years ago and implemented .

21 I don ' t know what the logic was when that happened22 or why they did it that way .

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MR MENDELSON: But with the MOU it sounds

2 like is taking back some responsibility ; am I

3 correct ?

CHIEF BURKE: . And essentially what5 we asked from the OCME when we met with them about this

6 is, once again it ensures the side of checks and

7 balances. We want some objective oversight for our

8 programs We want more than one set of eyes on it and

9 some technical eyes on our programs to make sure that

10 everything.

11 MR . MENDELSON: Yeah , let me just digress for

12 a moment, ' cause this has gone through my mind a couple

13 of times I know that there ' s a debate within the

14 administration about the governing structure for this

15 consolidated Forensics Lab , the CFL . I think all this

16 speaks to why it' s important to have an independent

17 governing structure. I mean , doesn ' t need the

18 embarrassment if something goes wrong, that ' s part of

19 it. But also there' s just the checks and balances from

20 having an independent governing structure Chief

21 Burke, don ' t you want to rely on scientifically

22 reliable evidence ?

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54

CHIEF BURKE: Obviously, with anything we do

from DNA to alcohol breath testing results as much2

3 objectivity we can have in there is obviously good or

4 to ensure that we ' ve got the appropriate people and

5 once again multiple checks and balances with any

6 technology And this isn ' t the first time where a

7 state or a jurisdiction has had a problem a breath

8 testing program - -

MR . MENDELSON : Sure .

CHIEF BURKE : - - as I found when we

11 researched and called the NationalDistrict Attorneys

12 Association and reached out to some folks, this

13 unfortunately has been an issue in other jurisdictions,

14 Washington State for instance. So we did have some

15 folks to rely on for advice .

16 MR . MENDELSON : We did some web research

17 maybe a month ago and my impression is that there ' s a

18 whole cottage industry anti intoxilzyer that ' s out

19 there across the country . I ' m note quite sure why I

20 brought that up . I guess in response to you saying,

21 this isn ' t the first time that this has happened

22 somewhere else in the country I seem to recall that


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55

1 there' s been DNA controversy in some jurisdictions.

2 This is just a digression and you allweren ' t invited

3 here to talk about the Consolidated Forensic Lab but I

4 do think that there' s an important point from this and

5 actually it' s two - - well, the important point in my

6 view is it confirms the view that governing structure

7 of the CFL ought to be independent and scientifically

8 driven Not under any particular agency And second,

9 and under that is it' s less likely we ' ll have these

10 mistakes and also you, meaning MPD , you don ' t need this

11 embarrassment . So I guess I ' ll get off of that for a

12 moment , because I didn ' t ask you to - -

CHIEF BURKE : Well specifically pertaining

14 to our breath testing program Once again , the lesson

15 learned is , obviously , it ' s good to have checks and

16 balances .

17 MR MENDELSON There ' s a form and I

18 it ' s PD809. Is that correct?

19 CHIEF BURKE: I believe that ' s the breath

20 testing form .

21 MR MENDELSON: It says Chemical Test

22 Certification Form .

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56

CHIEF BURKE Correct.

MR . MENDELSON: this the form that you

3 currently use ?

CHIEF BURKE: I ' m not sure if we use that

5 with the intoximeteror not . I believe that was the - -

MR . MENDELSON : Intoxilyzer.

CHIEF BURKE: Intoxilyzer, that was the - - if

8 my memory serves correct once again that was the form

9 that you would submit into the intoxilyzer , the person

10 would blow and it would subsequently print out what

11 their BAC was.

MR. HILDUM : Is that the form used by the

13 officer actually administers the test in the field ?

CHIEF BURKE: That wouldn ' t be used in the

15 field that would be used at the station

MR . HILDUM At the station .

CHIEF BURKE: Although I ' m looking at my - -

MR . MENDELSON: The form looks like this.

CHIEF BURKE : That looks like that PD29, the

Implied Consent Although can you look at the top of

21 that ?

MR MENDELSON . It says, ChemicalTest

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57

Certification Form .

CHIEF BURKE : Okay

MR . MENDELSON This is to certify that the

4 breath samples obtained using equipment going on and on

5 and then it has some blanks in the middle , percent

6 alcohol by weight , blank at blank and blank , percent of

7 alcohol by weight on blank at blank.

CHIEF BURKE : Okay that would be used by

9 the officer using the intoxilyzer in that specific

10 case .

11 MR . MENDELSON : Now this was used as long as

12 the intoxilyzer was being used ?

13 CHIEF BURKE : That ' s my understandingand

14 that ' s my recollection. I recall when I was assigned

15 back to traffic in 1991 using that form .

16 MR . MENDELSON: I mean, where I ' m going with

17 this is that it says - - well, it makes reference to the

18 Chief Medical Examiner and the impression I have is

19 that the OCME delegated everything to . I think

20 this raises the question, why were we citing an

21 official document , OCME when they weren ' t involved?

22 MR. HILDUM: Again , I wasn ' t here when we

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58

created this but I believe that it ' s OCME that2 developed the protocols and , I believe, even approved3 the training manuals. I ' ve read through a number of4 manuals over the years that have been provided to me

5 and I believe all of them were written with OCME

6 advice and consultation. I believe what happened was

7 then delegated to Officer King the administrative

8 responsibilities for the program but I can ' t give you9 the exact phrasing or tell you that 100 percent but I

10 believe that ' s what happened .

MR. MENDELSON: Well, let me read this just a

12 little more thoroughly . This is to certify that the

13 breath samples obtained using equipment approved by the

14 chief toxicologist and, I believe, I saw a document

15 that the OCME approved the Intoxilyzer 5000. Approved

16 by the chief toxicologist , officer of the Chief Medical17 Examiner for the District of Columbia were obtained

18 from the defendant by blank, a certified testing

19 technician in accordance with regulations of the Chief20 Medical Examiner and the equipment manufacturer ' s

21 specifications . And you ' re saying that the OCME had

22 developed these protocols ?

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59

MR . HILDUM : Well , there might be two things

2 going on there is that the officer administrating the

3 test was trained as to how to properly administer the

4 test , how to properly turn the instrument on , to wait

5 15 minutes and Chief Burke has done this -- actually

6 done this . I ' ve read about it but, I mean , Chief if

7 you can speak to this .

CHIEF BURKE : Correct But essentially any

9 officer using the intoxilyzer and I ' m not sure if this

10 had been delineated by the OCME many years ago even

11 before my time. They would go through a 40 hour class,

12 specifically on the Intoxilyzer and know what to do for13 different readings. If there ' s a variation of14 readings, if something reads to low , if there ' s15 disparity between two separate breath tests . And then

16 there' s another separate 40 hour specifically for the

17 Standardized Field Sobriety Testing, horizontal gaze

18 nystagmus test, walk and turn test, and the one leg

19 stand test that the officers would give not only here20 in but across the nation for any DUI case And21 that was the other major point that Rob brought up as22 well is that every single person that has come in ,

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1 officers had probable cause to arrest for DUI Once

2 again, it' s just the chemical testing results, the

3 breath testing results in these specific cases that

4 we ' re concerned about .

MR MENDELSON : Let me go back to this form

6 to continue reading. " The certified chemical test7 technician that tests the accuracy of said tests and

8 that the instrument was operating and performing in

9 accordance with operational procedures set forth by the10 Chief Medical Examiner and equipment manufacturer. "

11 That all sounds consistent with your testimony .

CHIEF BURKE: Correct.

MR . MENDELSON : " And that the equipment on

14 which the tests were performed - I ' m going to repeat

15 this and that the equipment on which the tests were

16 performed has been tested and found to be accurate17 within the past three months by the Officer of the18 Chief Medical Examiner And that ' s what the form says19 and at least going back to 2007, OCME was not involved

20 in the testing. I ' m not sure where to go with this21 other than that I find this just a - it ' s disturbing

22 that here we are discussing the accuracy or voracity of

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this whole process and the form states on it something2 that just on it' s face is not correct . was not

3 involved . That they had delegated that I don ' t know

4 if you have a response to that but I would hope that

5 the current forms are accurate as to who' s doing what ?

CHIEF BURKE: Sure

( Pause . )

MR MENDELSON : Do you know how long has

delegated this to MPD ?

CHIEF BURKE : I do not.

MR HILDUM : I don ' t either, sir .

MR. MENDELSON: Well, now Chief Burke you've

13 been involved in this area for - since before 2007 ,

14 correct ?

15 CHIEF BURKE : Initially I went to traffic

16 division as an officer in 1991. I don ' t recall - -

17 although there have been different chief toxicologists18 in at the times. Specifically, I do remember reviewing19 the program with Dr . Fiona Couper (ph one point

20 somewhere around 2000 but I ' m not sure at what point

21 advocated any roll on this .

22 MR . MENDELSON Well I have a from OCME

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CapitalReportingCompanyPublicHearing 07- 14 -2010

in 2007 but my sense from your testimony is that their

2 delegation predated 2007?

CHIEF BURKE : That ' s what I would guess .

4 That ' s correct.

MR MENDELSON , let me turn to more

6 legal issues. Mr Hildum , you say that - - you ' ve said

7 that OAG has reviewed DWI prosecutions since September

8 2008 ?

MR HILDUM : That ' s correct .

MR MENDELSON Why only as far back as

11 SepySeptember 2008

12 MR . HILDUM : Because that ' s when we believe

13 that the accuracy of the instruments were compromised.

MR . MENDELSON : And you believe that because ?

MR . HILDUM It' s the only place that I can

16 draw a line knowing that we have gone back - - that we

17 have been able to determine - - PD has been able to

18 determine that when the motors were changed that that

19 seemed to compromise the new protocols were put in and

20 that seemed to compromise the accuracy I can only

21 rely upon the protocols, the work that was done by

22 Officer King his statements as to what he did and all

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of this has been well known and the District has gone2 through the court system , has on occasion been3 challenged and have been upheld So for me to go back ,

4 I don ' t know what I would look at if I was going back

5 before 2008 .

MR . MENDELSON : So looking at Officer King' s

7 procedures and what he did - - procedures and routines,

8 the only significant event is the changing of the

9 motors and that ' s September 2008?

10 MR. HILDUM : As far as I understand it, yes,

11 sir .

MR MENDELSON Chief Burke you . . .

( No audible response .

MR. MENDELSON : And so going back to

15 September 2008 , you reviewed 1100 cases?

MR . HILDUM : That ' s correct . Yes, sir .

MR . MENDELSON: Now , my understanding is that

18 one machine could handle, let ' s say -- I shouldn ' t say

19 could handle, would handle let' s say maybe 75 cases in

20 a month. Does that sound about right, Chief Burke?

21 MR . HILDUM : I mean, if the Chief can speak

22 to it I - -

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.. .. . . .

64

MR MENDELSON: Well, let me just go a little

2 further. I did some math , ' cause I took that 75 . Hold

3 on . So I did some math . If one machine does 75 and

4 there are 10 machines, that ' s 750 a month times a year

5 and a half equals about 12,000 cases. Now , even if 75

6 is high and you discount that, even discounting it by

7 half you come up with 6, 000. Why would you only have

8 looked at 1100 cases ?

MR. HILDUM : I think 6, 000 prosecutions for

10 DWI in 18 months is well beyond what we do Even when11 you factor in Park Police, Capitol Police and MPD ,12 Secret Service makes arrests too but I believe they use

13 Capitol Police ' s instruments . Six thousand , I think ,14 is almost impossible for us to be prosecuting .15 MR. MENDELSON: Well, how many do you

16 prosecute ?

17 MR . HILDUM : As far as I can tell from the

18 records we looked at , the search that we did was about

19 1100. I don ' t think it ' s uniform that there are 75 per

20 machine that you can do the math like that There ' s

21 one district, I think 3D had the bulk of the

22 prosecutions .

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65

CHIEF BURKE : I think that' s a good point,

2 Rob . There ' s some districts, for instance, the Third

3 District that has Adams Morgan , possibly the Second

4 District that has Georgetown; and the First District

5 that has a lot of your more densely populated bar

6 populations that would see the majority of the cases ,7 the officersmost specific districtsmaking those

8 cases. And there are few people, for instance, in the

9 Third District and the Second District , officers I know

10 that make the overwhelming majority of arrests in

11 the City There ' s a real hard core group of people

12 that are very passionate about DUI enforcement and I ' m

13 sure as the OAG would attest to they make the majority14 of these arrests.

15 The other thing to look at is once again the

16 rolling change out of the motors . So , we ' ve got - -

17 starting in September ' 08 but going incrementally up to

18 th

19 15 let ' s say even July 13 , 2009, so that would

20 minimize the number of cases impacted - -

21 MR. HILDUM : No that ' s the number of cases

22 that would have been affected . We went back to

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September of 2008 and we identified every case that

2 involved MPD and DWI. We came out with about 1100 and

3 we got assistancefrom the court as well.

MR MENDELSON: that a DWI conviction

5 DWI charge ?

MR . HILDUM Prosecution. Prosecution.

MR . MENDELSON : Charge

MR . HILDUM : Yes, sir . And we got assistance

9 from the court as well and their numbers were roughly

10 the same They were a littlebit off because I think

11 they did a more expansive search but, I mean, as the

12 best we could do is bring together these 1100 cases .

13 Now , part of the reason why I wrote the Public Defender

14 Service and

15 I wrote the Trial Lawyers, SCTLA, Superior Court

16 Trial Layers Association, was to get out , here ' s the

17 instruments here ' s when they were compromised Any

18 attorney who ' s defended a DWI is more than free to go

19 back into their files and see if there were are any

20 cases affected That was the point in doing that So

21 I have tried to get as much information as I can out

22 but my best effort has been 1, 100 cases I don ' t think

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1 it ' s even possible that we had 6 , 000 DWI cases.

MR . MENDELSON: Well, okay So maybe the

3 number - - my math was based on one approach Maybe

4 that ' s too high but what about a person who was

5 arrested for DWI and subsequently plead to -- like

would they plead to or would they plead to - -

MR. HILUM: They could plead to

MR. MENDELSON: Let' s say they plead to OWI,

9 would they be included in that 1, 100?

10 MR. HILDUM: They would be in that 1, 100.

11 They would not be in the 350 - 400 that I ' ve identified

12 as being affected . For it to be affected in our

13 analysis was, you had to plead guilty or be found

14 guilty of DWI, meaning we relied upon the scores for

15 the plea or for the trial. So if a person plead to a

16 DUI, was found guilty of , or plead to , or was

17 found guilty of OWI I didn' t include it as affected,

18 that the case was affected.

MR . MENDELSON I ' m sorry repeat that again ?

MR HILDUM : Okay. We can charge you with

21 DWI.

MR MENDELSON: Yes.

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68

MR HILDUM : In many cases we might elect to

2 allow you to plead to a or an If you plead to

3 a DUI then necessarily I was not relying upon the

4 scores for your conviction . So - -

MR MENDELSON : Because there was a plea ?

MR . HILDUM : Well because you ' re pleading to

7 DUI I have elected not to prosecute you with DWI

8 where remember , DWI requires the scores . DUI requires

9 evidence of ' s , poor driving , slurred speech , all

10 of those things .

11 MR. MENDELSON: But what about the argument?

12 So the 400 only included a plea to DWI?

13 MR . HILDUM: A plea or being found guilty of14 DWI

MR . MENDELSON : Of DWI?

MR . HILDUM Uh-huh .

MR MENDELSON : Okay But what about the

18 individualwho ' s charged with and because of the

19 score for whatever reason you all agree that hewill

20 plea to DUI. Maybe he wouldn ' t have chosen to plea if

21 the score had been different.

22 MR . HILDUM : I can ' t speak to what ' s in the

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69

1 defendant ' s mind or why they may have chosen to plea

2 guilty . I mean , an important concept in criminal

3 lawyer ' s law is North Carolina vs. Alford which says

4 the defendant may plead guilty for any reason they

5 choose . The interesting thing about Alford was that

6 was a death penalty case where the defendants - - if I

7 remember correctly stood up in front of the court and

8 said the only reason I ' m pleading guilty is because I ' m

9 afraid of the death penalty and my mother wants me to

10 plead guilty and that went all the way to the United

11 States Supreme Court and the Supreme Court said there ' s

12 factual basis to sustain your conviction and you can

13 plead guilty for any reason you want and we' re not

14 going to overturn your plea.

15 Now I can ' t speak to why a person decided to

16 plead guilty. They may have plead guilty because they17 want it over with . They may have plead guilty because

18 they are in fact guilty. They may have plead guilty

19 because they didn ' t want to go to trial. I mean ,

20 there ' s a whole bunch of things I can ' t guess and

21 I ' ve heard this argument as well but you can ' t assume

22 that a person plead guilty because we had scores that

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1 read . 14 or 20 or anything like that and their

2 motivation for pleading guilty was because we had the

3 scores I can ' t speak to that . Now if an individual

4 person wants to try and bring that motion to court and

5 argue that ' s the reason they plead, that ' s something

6 they can argue to the court. But, I ' m not going to

7 concede -

MR . MENDELSON: And what ' s the court going to

10 MR HILDUM : The court can - - at that point,

11 I assume , can listen to argument , take testimony and

12 rule on the motion whether this person was motivated

13 one way or another.

14 MR . MENDELSON : And you ' llpull out the

15 Alford case

16 MR . HILDUM : Well , Alford is an example -

17 MR . MENDELSON : I mean - - but you ' llpull out

18 the Alford case and say , he or she pled on their own - -

1919 MR . HILDUM: I don ' t know . I mean, the point

20 of the Alford case was that people plea guilty for lots

21 of different reasons and not necessarily because you

22 can ' t say we ' ll I have to assume because people plead


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Capital Reporting CompanyPublic Hearing 07- 14 - 2010

guilty to DUI it' s because we had breath scores .

2 person may have plead to DUI for a number of reasons .

3 We may have dropped the breath scores for a number of

4 reasons . It' s an individual decision and those cases

5 have to be taken case by case. I ' m not willing to

6 concede a motion because a person says, "Well I plead

7 guilty because you have the scores . " Well, during the

8 colloquy with the court , the court asked them why are

9 you pleading guilty . Because , I am in fact guilty .

10 During the colloquy with the court there had to be an

11 allocution of facts. Those facts would include the

12 standard field sobriety test , the poor driving, the

13 other evidence that we had that that person was in fact

14 driving under the influence.

15 , I ' m not convinced and I would have to see

16 an individualmotion and I ' d have to decide based on

17 that motion and any information we might have had in

18 our files how to approach that . But I ' m not going to

19 blanketly concede pleas to DUI because there happen to

20 be scores in the file, that ' s ridiculous.

21 MR MENDELSON All right But the 400 cases

22 that you and I think you actually said it was

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1 like 360 .

MR . HILDUM I think that ' s the number .

MR. MENDELSON : It' s easier to say 400 .

4 That ' s what everybody knows You haven ' t dismissed any

5 of those cases? Have you ? I shouldn' t say dismissed

6 but you haven ' t withdrawn any of those

MR HILDUM: the research that I have

8 shown and the consultations that I ' ve had with other

lawyers , it is not my right or my obligation if you10 will to simply dismiss them . It is the individual11 defendant and their attorney ' s decision And there are

12 many people - - my understanding is, there are many

13 people who have said, I ' ve had it with this I ' ve done

14 this . Leave me alone . I don ' t wan to go back to court .15 I don ' t want to talk about it .

16 MR . MENDELSON : So it ' s on them whether they

17 want to go back into court ?

18 MR HILDUM : Yes.

19 MR . MENDELSON : But then why not notify all20 of them not just the 400 ? Since some of them may want21 to make the argument that they plead to a lesser22 offense because of the BAC not the - - yeah , the

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73

1 breathalyzer scores What I ' m getting at is why 400 as

2 opposed to all 1100 ?

MR . HILDUM: I have done the best I can to

4 determine what our obligation is. It is my view that

5 those cases where we did not rely upon the DWI scores

that they were not affected. Now , I have made as

7 public as I possibly can by providing to the leading8 criminal defense entity in this district, the Public

9 Defender Service and to the Superior Court Trial

10 Lawyers Association the dates of the miscalibration . It

11 has been publicly reported and that if somebody wants

12 to challenge that they can . But there ' s - - in my view

13 there ' s only so much I can do and I think that I have

14 done the best I can to notify those .

15 MR MENDELSON : Well I ' m kind of reminded of

16 last year , the U . . Attorney ' s Office ran into some

17 trouble with I believe in -- was it an FBI agent who --

18 somehow evidence was compromised and the court ordered

19 the U . Attorney to identify every case that might

20 have been affected Does this sound familiar to you ?

21 MR HILDUM: It does sound familiar The

22 analogy I was working off of was a few years ago that

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1 there was an MPD police officer who claimed special

expertise in narcotics investigations and I think

3 street leveldealing; and had claimed, I think, a

4 degree - - well, he claimed expertise that he - - a

5 degree or certification that he did not have.

The U . . Attorney ' s attempted to

7 review all of the cases and it was a littlebit

8 different because the cases that were affected were

9 where he testified. So the . Attorney ' s Office did

10 research , I think, they found 75, 80 cases that this

11 officer had testified. They notified defense counsel

12 Then they reached a point where they felt , you know ,

13 the records are too old. We can ' t fully determine

14 whether he testified or not in these cases they sent

15 a letter to the Public Defender Service and , I believe,

16 also to the Trial Lawyers Association and they said

17 there was a problem involving this officer. We want

18 you to know it and if you identify any cases let us

19 know .

From that process they found another 50 cases

21 that went back to court and the convictions were

22 overturned I did it a little bit differently because


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the volume of cases that I felt were affected I

2 thought it was more important to get as much

3 information as I could out as quickly as possible so I

4 did it the opposite way . I did a blanket letter , if

5 you will , to the Public Defender Service and to the

6 Trial Lawyer' s Association and said, " We believe there

7 was a problem . " I ' m providing you with the list of the

8 cases we' ve identified and I ' m providing you with a

9 list of the instruments and the dates we believe they

10 were compromised And then I have set out to write the

11 individual letters. So I have tried everything I can

12 to get this out Any attorney who has called me and

13 requested a copy of the letter , I ' ve given them a copy

14 of the letter.

15 MR . MENDELSON : with the other instance

16 involving the U . . Attorney, did the court tell them

17 what to do ?

MR HILDUM : I am not familiar with whether

19 the court told them what to do or not .

MR MENDELSON there a process by which

21 you could go into court and ask them what you should

22 do ?

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76

MR HILDUM: We have met with the chief judge

and we have met with the presiding judge We informed

3 them of the problem and broadly told them what we

4 intended to do . The court is now well aware of the

5 letters that we' ve written and our efforts to get

6 notice to the individual attorneys ; and there ' s

7 litigation as well . I mean, attorneys are filing

8 motions seeking information from us and we ' re in

9 litigation over those and then there ' s also the civil

10 suits that are starting.

11 MR MENDELSON: Can you say that the court

12 approves of the process that you ' ve taken to notify - -13 to identify cases and notify defendants ?14 MR HILDUM It ' s hard for me to say that

15 they ' ve approved. I don ' t think we ' ve put them in that

16 position . We certainly have them know what we' re

17 doing and they know what we' re doing now and we ' re now18 in a sense litigating over it so . . .19 MR . MENDELSON: Can you tell me that they

20 didn ' t disagree with what you were doing ?

21 MR. HILDUM : I have not heard at this point

22 any disagreement with what we ' ve attempted to do and


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again we have always tried to be as forthright as we

2 can . I can tell you that when I started dropping the

3 scores I was quite shocked at the vitriol that I heard

4 from the defense bar , the suspicion , the anger . My

5 was, I ' m dropping evidence that tends to convict

6 your client but that was met with suspicion and anger,

7 and all sorts of accusations and I have done nothing

8 but try to react as quickly as possible to this

9 Including not going forward on evidence that I think is

10 compromising.

11 MR. MENDELSON : Well, I ' m not feeling that

12 anger but my guess is, is that it might be coming from

13 the fact that people feel when they ' re up against

14 scientific evidence, there ' s nothing they can do ,

15 they ' re helpless and then when they find out that , in

16 fact , the scientific evidence was flawed then all of

17 that helplessness gets directed into anger I ' m just

18 speculating .

19 MR . HILDUM : No , and I can understand the

20 frustration as a former defense attorney . As somebody

21 who had to defend a very high profile murder that ............22 involved DNA I can understand the frustration. I

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78

1 certainly can think that there has been a lot

2 of misinformation. I think there' s been a lot of

3 speculation. I think there ' s been a lot of conspiracy

4 theories that have been recklessly thrown about that

5 ' t have any basis You know , I mean one attorney

stood up in court and said, MPD for years has conspired

7 to artificially raise breath scores. Well, there ' s

8 absolutely no basis to say that but, you know , they say

9 it .

10 , I 've done everything I can to cooperate,

11 to get information out and to be as ethical and as

12 responsive as we possible can mean , certainly

13 there ' s going to be disagreements and I respect that .

14 We have several motions now that we ' re answering that

15 we ' re dealing with and we ' re doing our best to go

16 forward on those cases

17 But, you know, as soon as I could, you know ,

18 as soon as we were able to pinpoint the problem , we

19 tried to identify the people who were in jail at that

20 time, notify the court I mean there wasn ' t even a

21 motion before the court We just notified the court

22 and we said, we think we have an affected case and we

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think we have somebody in jail and the court

2 immediately set it for a hearing and we went to court

3 and dealt with it. That ' s what we ' ve tried to do .

In my 18 years as a defense attorney , as a

5 prosecutor , is unprecedented it ' s difficult

6 and I think it s difficult for the court , the judges , I

7 think it ' s difficult for the defense bar but we have

8 done everything we can to try and be as cooperative and

9 as forthright as we can .

10 MR MENDELSON : The DDOT contractor , Mr.

11 Praegle [ sic ]

MR. HILDUM Paegle.

13 MR . MENDELSON : Paegle Paegle He found

14 the problem on February 4th ?


MR . MENDELSON : Notified you on the same day ?

CHIEF BURKE: He came into - - I believe, he

initially came on February of 2010 and he was

19 working with one of our technicians on February 4th of

20 2010 when he discovered this issue.

21 MR MENDELSON : Why was it three weeks before

22 you issued the press release and made it known that

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there was a problem ?

CHIEF BURKE: Well, I ' ll answer that. I3 think as Rob initially stated, we didn' t know what the4 extent of the problem was. in meeting our ethical5 obligations, knowing that there was a potential issue6 we pulled everything and that was my direct of take

7 every intoxilyzer out of service and we ' ll use United

8 States Park, U . . Capitol in the interim . And then I

think it was until we had somewhat of an understanding

10 into what the issue was that we collaborated on that

11 specific press release .

MR . MENDELSON : That ' s not completely

13 computing for me. I think the issue here is more one

12

14 of notifying the court or notifying the defendants .

15 Chief Burke, you acted quickly to pull the machines out

16 and that list was attached to a memorandum says,

17 " Discrepancy discovered February 4th . " And you ' re

18 saying on February 4th or the 5th you immediately

19 pulled the machines out of service.

CHIEF BURKE : And made notification to the - -

MR . MENDELSON: Mr Hildum, you said you

22 stopped - - you dropped or stopped using the

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breathalyzer evidence immediately but you didn ' t say

2 anything to anybody for three weeks ?

MR HILDUM : Because I didn ' t know why . I

4 think what you ' re confusing in that report is that the

5 dates to February 4th are February 4th is the cutoff

6 because that ' s when they took them out of service . We

7 knew there was a problem

MR . MENDELSON : On February 4th ?

MR . HILDUM : On February 4th , I did not know

10 the cause of the problem .

MR . MENDELSON : But you knew the intoxilyzers

12 were inaccurate

MR HILDUM : Testing too high at that point.

MR MENDELSON you needed -

CHIEF BURKE : And that ' s possibly - at this

16 point we have two revered experts in the area that have

17 contradictory opinions and that ' s - -

18 MR . MENDELSON Who are the two experts ?

CHIEF BURKE : This is Officer King and our

20 contractor Ilmar Paegle who have opinions but once

21 again as long as this cloud of doubt is over there, we

22 did what we believe we were ethically obliged to do .

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Pulled them out of service, made notification to the

2 Office Attorney General and then we met repeatedly

3 until we were able to discern what the issue was .

MR MENDELSON: Couldn ' t you have said to

5 plaintiff ' s counsel , we think we have a problem with

6 the Intoxilyzer and that ' s why we ' re pulling this?

MR HILDUM : It was my view at that point in

8 time in conferring with MPD . It was our hope that this

9 was a mistake That it was going to be fixed somehow .

10 That , in fact , the instruments were accurate . That

11 they may have been isolated to the three instruments at

12 that time . I had no idea . It ' s hard for me to

13

14 MR. MENDELSON Wait a minute You said,

15 three instruments but the memo says every one of them

16 was ?

17 CHIEF BURKE Those are the ones that were

18 initially checked on the 4th . Obviously, when we

19 discern an issue with any instrument there was a

20 subsequent review of everything.

21 MR. HILDUM : So even though we only knew

22 about three testing too high , they immediately pulled

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83

every instrument out of the field and said , you know ,

2 we may have a problem with all ten . I think there ' s 13

3 but there' s 10 that are in, in - service at any one time,

4 pulled them all out . there ' s three that are testing

5 too high They pulled every one out of the field . They

6 informed me, they ' re testing too high We ' re not sure

7 why. We say , fine We ' not going to rely on them at

8 all. I can ' t - - in my view , I can ' t run to court and

9 say, " We' ve got a problem . I don' t know what it is ,

10 but I ' ll get back to you. " And then come back three

11 weeks later and say, " You know what ? Never mind. " I

12 don ' t see how I can set off that panic and I still

13 don ' t know why But even though not knowing why we

14 immediately said , we ' re not going to rely on the

15 scores .

16 Now , rumors starting circulating throughout17 the courthouse immediately because we were dropping the

18 scores but, you know , I ' m dropping inculpatory

19 evidence I am dropping evidence that a person is

20 driving while intoxicated and pursuing instead ,

21 basically , that the testimony from police officers . So

22 during that three week time span , we ' re simply dropping

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84

the scores. I don ' t know . We had hoped at one point2 that we would be able to explain this and get back on

3 track and begin using the scores again . And , in fact,

4 that ' s why Alka Lohmann from Virginia was brought

5 in to review this and I even remember one conversation

6 where we said, "Well, there ' s more than one way to skin

7 a cat and Alka might be able to explain this in a way

8 that makes sense and that these scores are going to be

9 reliable.

10 , once we determined on the 25th that there

11 was a problem That all the instruments seemed to be

12 compromised, that at that point we issued the press

13 release. Again , we ' ve got an IAD investigation. We' ve

14 got somebody who ' s got rights . We don ' t know

15 everything at that point . The investigation is not

16 finished and the investigation went on for another two

17 or three months .

18 But as as we had some idea of what was

19 going on we immediately went to work. I didn ' t wait

20 until the report came in in May saying, the instruments

21 were compromised . I went to work immediately trying to

22 identify the cases that might have been affected .

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85

1 Coming up with a system of reviewing them , distributing

2 them to my attorneys with training and instruction on

3 how to review the files and then identifying those

4 cases that we believe were affected . You know , the

5 best I can tell you is that we did the best we could to

6 be as honest as we could be.

MR MENDELSON I guess what I ' m hearing is

8 that the defense attorneys are probably saying, you

9 knew on February 4th , you didn ' t tell anybody until

10 February 25th .

1111 MR. HILDUM Uh-huh .

12 MR. MENDELSON : And what you ' re saying is ,

13 well , you didn ' t really know on February 4th . You14 didn ' t really know until February 25th .

MR . HILDUM : That ' s correct . We knew

16 something was wrong. We didn ' t know the cause of the

17 problem

MR . MENDELSON : And you don ' t think you had

19 an ethical obligation to say more earlier ?

20 MR. HILDUM No I am dismissing - - I am

21 electing not to rely on evidence that is inculpatory to

22 their client not exculpatory , inculpatory . Remember


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86

nobody - - I never drink and drive . I never drink

2 anything but water or 7 -up and cranberry juice There

3 is no instance , and we know this from the testing ,4 there is no instance where water tested positive for5 alcohol . There is no instance where pulled6 somebody out of a car , put them in the squad car , drove7 them down , put them in front of an intoxilyzer and they

8 blew in the intoxilyzer and they were, in fact , sober

9 but blew a . 20 That never happened . What happened10 was they made stops based on probable cause . They did11 observed the individual . They had

12 probable cause to arrest them for drunk driving. They

13 brought them down before the Intoxilyzer and they blew14 in the intoxilyzer .

15 , you know , the idea that anybody - - that

16 this is somehow evidence of innocence is impossible.

17 , I elected as a prosecutor not to go forward on that

18 evidence. , there is something called the handheld

19 - -

20 CHIEF BURKE : A roadside breath test .

21 MR. HILDUM : The roadside breath test is

22 often used but is not admissible into evidence because

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87

for various reasons involving the science in that but2 it is used on the roadside. But it can ' t be introduced

3 into evidence because it ' s not deemed to be reliable.

4 In my , the intoxilyzer results are in the same

5 category . They ' re unreliable and I can ' t introduce

6 them . Period. , I didn' t .

But , there is nothing in a person blowing a

8 then me saying, well, I don ' t think I can rely

9 on those scores . It somehow is exculpatory when I have

10 this other evidence and I ' m pursuing them on

11 essentially a different charge, DUI .

MR . MENDELSON: I forgot to ask this but13 there ' s nothing in any of the letters you ' ve sent that14 what the overage was in the results But Mr .

15 Nickles was quoted in the paper saying it was 20

16 percent .

17 MR . HILDUM : My understandingwas it was 20

18 to 30 percent too high . I think Mr. Nickles might have

19 been - - I haven ' t seen it but he may have been quoted

20 in saying 20 to 40 percent. Chief Burke might be able21 to speak to that .

22 CHIEF BURKE: My recollection was 20 to 30

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88

1 percent with those specific instruments.

MR MENDELSON : And you would know this from

3 . Paegle?

CHIEF BURKE: Correct .

MR . MENDELSON : Which was confirmed by

6 Lorhman?

MR . HILDUM: I don ' t know that she confirmed

8 it

CHIEF : I don ' t believe she had any10 role in that specific aspect.

MR MENDELSON : She just looked at the

12 discrepancies between the two individuals or the

13 protocols and said that Mr Paegle ' s protocols were

14 correct?

15 CHIEF BURKE : I believe more looking

16 at the protocols administered by Officer King .

17 MR HILDUM: And then she couldn' t go any

18 further because declined to assist in the

19 investigation which I believe was her quote I can ' t

20 do anything further without input from CMI and CMI

21 declined to give that input.

MR. MENDELSON your understanding it

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1 was 20 to 30 percent, the range being the machine? One

2 machine might have been 20 percent over , another

3 machine 30 percent over . Am I understanding that

4 correctly ?

MR HILDUM: That ' s correct There ' s

6 different standards though. I mean, basically in an

7 error rate of 5 percent or higher under NHTSA

8 standards, the National Highway Traffic and Safety

Administration is that there can ' t be a 5 percent plus

10 or minus - - more than a 5 percent plus or minus error

11 in the accuracy test . Capitol Police uses a 10 percent

12 standard . Any time you get beyond those two error

13 rates, the results are unreliable.

14 The first question that came to me was , Rob ,

15 is it possible that we could simply do the math and

16 extrapolate backwards , for example , if someone

17 blew a . 20 could we do the math and go backwards and

18 say, well, they may have blown a . 20 but we know it' s

19 20 to 30 percent off So it had to be a . 15. And my20 answer was, no . Once we re beyond these acceptable

21 error rates, it ' s simply inaccurate . I couldn ' t

22 rely on it in any fashion . I mean, I would have loved

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1 to have been able to do that but you simply can ' t do

that

MR MENDELSON: NHTSA is 5 percent you said?

MR . HILDUM : That ' s my understanding . Yes ,

5 sir

MR . MENDELSON : What is MPD ? What has it

7 been for MPD error rate of - error range of 5 percent

8 or 10 percent?

CHIEF BURKE: I ' d have to look at our

10 standards under the intoxilyzer to see what that error

rate was .

MR . MENDELSON you know Mr Hildum ?

MR . HILDUM: I don ' t I think it might have

14 been five percent but I ' m not entirely sure .

15 MR MENDELSON: But, that means - - I m

16 just going to use the 10 percent ' cause that ' s easier.

17 So if I ' m per se - - one is per se intoxicated at 08

18 with a 10 percent margin , that means that they could be

19 .

20 MR . HILDUM Correct But - -

MR . MENDELSON In reality 072 but with a

22 10 percent margin of error the machine is reading . 08 .

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91

MR HILDUM Correct , if there is that margin

2 of error that can be shown. I mean, many times the

3 instrument calibrates properly tests accurately and

4 again the standard for introduction is that we have to

5 show that it has been maintained in the manufacturer ' s

6 specifications and within the last 90 days shown to be

7 accurate Within the last 90 days , as long as it ' s

8 accurate within 5 percent , then it' s deemed acceptable

9 in court .

10 Now those are the arguments that are made by

11 defense counsel. If a person is . 08 and, you know,

12 defense counsel will make the argument well there ' s a

13 5 percent error that means we' re below the . 08 and

14 they ' ll do that also with the mandatory minimum it' s a

15 You ' ve got these ranges of error, it could very

16 easily be . 195, give me a break Those kinds of

17 arguments are made all the time in court .

18 CHIEF BURKE : The interesting thing to me

19 along those guidelines as I ' ve said , there ' s typically

20 a small percentage of the officers that make the large

21 majority of the DUI DWI arrests in the City and

22 typically through doing this for many years and

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92especially being well versed in your standardized field

2 sobriety tests. Specifically with the horizontal gaze

3 nystagmus tests where you can essentially after some

4 time , I think , people get to be very well versed

5 essentially with a maybe delineatingwhat level of

6 BAC the person is going to blow based upon looking at

7 their eyes alone.

So that was a littlebit interestingto me if

9 I were to pull someone over and really say , well, this

10 person looks like they ' re about a and then a test

11 result is off by a significant amount . It seems like

12 it would be something that an officer would pick up on

13 right away .

14 MR. MENDELSON : Mr. Hildum, you ' ve mentioned

15 a couple of times that unlike other jurisdictions we

16 don ' t have more details in our law Should we?

MR HILDUM Um - -

MR MENDELSON: I don ' t know if that means

19 actually writing the protocols into the law but you had

20 made reference to other laws, other jurisdictions are

21 more specific and we have a more general statute .

22 MR . HILDUM : That ' s correct .

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93

MR MENDELSON: Should we be more specific ?

MR HILDUM: I don ' t know the answer to that .

3 I know that I have looked at probably , 20 , 25 other

4 jurisdictions where, in fact, they either have the

5 accuracy protocols in the statute or they call for them

6 . to be done by regulations through OCME or an office of

7 weights and standards or something like that . I mean ,

8 to a certain extent , MPD Park Police and Capitol

9 Police have their operating manuals with standards by

10 which they maintain the instruments and establish their

11 accuracy within the last 90 days They have

12 essentially done regulations. I don ' t know - - I know

13 that what we ' ve done going forward with the intoximeter

14 is written down , it' s followed, it will be turned over

15 to defense counsel. Just like the prior protocols,

16 procedures, maintenance Protocols were turned over to

17 defense counsel over the years .

18 , essentially we ' re doing that . I don ' t

19 know whether we should do it by regulation or whether

20 we should continue to do it well where we are I think

21 it might be a good thing if we had all of the agencies

22 on the same page Right now Park Police uses

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94

1 intoximeter, MPD is using an intoximeter I think our

2 protocolsmirror Park Police. I haven ' t looked at it .

3 I ' m pretty certain they probably do CapitolPolice is

4 now using the intoxilyzer .

you know , I think to a certain extent ,

6 Park Police , MPD are using intoximeter they ' llbe on

7 the same page. And then we ' re going to have the

8 intoxilyzer with Capitol Police and they have their

9 protocols, which again, have been challenged over the

10 years , litigated throughout the years .

11 MR . MENDELSON : intoximeter a different

12 manufacturer ?


14 MR HILDUM : Yes It' s Intoximeter

15 Incorporated from St . Louis, Missouri .

16 MR. MENDELSON: Mr. Hildum, would you get

17 back to me with a recommendation on whether the counsel

18 should look at legislation in this area ?

MR HILDUM: Sure.

MR. MENDELSON : And , Mr. Hildum , I think you

21 said that there now have been some law suits filed

against the District

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95

MR . HILDUM: That ' s correct.

MR . MENDELSON : Now , we ' re talking about

3 beyond just a individual defendant who ' s trying to get

4 his conviction overturned?

MR HILDUM: These are civil suits and I

6 don ' t want to get beyond and get into that because I

7 don ' t want to compromise - -

MR MENDELSON: Well, how many have been

9 filed

MR . HILDUM : understanding is about a

11 dozen individual suits in Federal Court .

MR . MENDELSON: In Federal Court

13 MR HILDUM Yes, sir .

14 MR . MENDELSON : would be

15 constitutional issues like due process ?

16 MR. HILDUM : I cannot tell you for sure what

17 the basis is. I ' ve read through some of them quickly

18 but again I have left that to the Civil Division .

19 MR MENDELSON: ' Cause you ' re not handling

20 those?

21 MR . HILDUM : No , sir

22 MR MENDELSON you think it ' s about a

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6

dozen Are any of them class action

MR HILDUM: I have not seen any class action

3 suits as of yet , but I don ' t know .

MR . MENDELSON : Can you give me a sense of

5 what kind of damages they ' re claiming?

MR HILDUM: None that I - -

MR . MENDELSON : Like millions of dollars or ?

MR . HILDUM : I can ' t I ' m sorry .

MR. MENDELSON you have sense of how much

10 of a risk we have here?

11 MR . HILDUM : I really can ' t speak to that .

12 I ' m not sure I ' d want to if I did know but I don ' t

13 know

14 MR MENDELSON But there are two ways

15 of answering that One is what you think and the other

16 is what they claim .

17 MR HILDUM : I can answer I am not familiar

18 with enough with the cases to give you an accurate

19 answer.

20 MR MENDELSON : Do you have a sense that

21 there will be more ?

22 MR HILDUM: Again, I don ' t know . I mean I

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really don ' t know . It depends on the individual and

2 the individual facts of each case I mean , that ' s the

3 interesting thing about these cases they seem to all

4 turn on individual backs . I mean , there are some cases

5 that are really egregious.

You know , I remember one case I read where

7 the guy was passed out at a light, 18th and Columbia,

8 with his foot on the gas and there was , you know ,

9 throughout the report the police officers talked about

10 how they attempted to wake him up . How afraid

11 were - - I don' t know if they said afraid but how

12 concerned they were that if he woke up that he might

13 hit the gas . So they talked in great detail about how

14 they were able to get into the truck and turn off the

15 ignition I think that ' s a pretty egregious case . The

16 person was incredibly intoxicated That s , you know ,

17 to me in reviewing that case I say that is an

18 incredibly dangerous situation ,

19 MR MENDELSON And that ' s one of the suits

20 now against the District ?

21 MR HILDUM That was one of the files

22 that I reviewed.

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98

MR. MENDELSON: , okay .

MR . HILDUM: But the point is they turn on

3 their individual facts. Some folks, they might have

4 run a stop sign and they ' re stopped. Some folks, may

5 have been speeding and they were stopped. Some folks ,

6 you know , play pinball with parked cars . You know , hit

several parked cars , don ' t respond to the police

8 officers, cause very dangerous situations,

you know , all of the cases whether

10 criminal or civil I ' m going to assume will turn on the

11 individual facts of the case.

MR . MENDELSON : there anything we can be

13 doing now to limit our liability with regard to these

14 cases ?

MR HILDUM : I cannot answer that I don ' t

16 know

( Pause.

MR MENDELSON Give me just a moment.

( Pause. )

MR . MENDELSON : I have a couple other

21 questions. On February 25th, you issued a press

22 release?

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MR HILDUM EOM issued the press release,

2 yes sir .

MR. MENDELSON : You did not write to Public

4 Defender Service or the Superior Court Trial Lawyers

5 until, I think , June 4th .

MR HILDUM That ' s correct .

MR . MENDELSON : why several months ?

MR . HILDUM : I had to review all of the

9 files. It was my view that the best approach going10 forward was to take all of the prosecutions I could

11 identify, the 1, 100 and go through those and try and

12 identify the cases that I believed were affected by

13 this ; and then issue that report . I mean , we had made

14 sure nobody was in jail We had stopped using the

15 scores and I tried my best to identify the cases that I

16 thought were affected. It took several months to - -

17 MR MENDELSON: Couldn ' t you have sent a

18 letter to Avis Buchanan [ph with saying on

19 February 26th saying, hey, we got a problem. Here' s

20 the press release We ' ve got a problem . We ' re looking

21 at the cases now and then on June 4th after you figured

22 out that it ' s 400 or 360 cases right and say attached

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1 are the cases?

MR . HILDUM : In hindsight I don ' t know . I

3 didn ' t consider it. Again , I ' m facing a situation, I

4 think, was fairly unprecedented We stopped using the

5 scores We attempted to get the folks affected who

6 were in jail out of jail and then we sough to first

7 pull the cases and 1, 100 cases is not insignificant . We

8 had to locate them , find them We did searches on a

9 daily basis. We found them and then we organized them

10 and then we distributed them in small batches to the

11 attorneys who, of course , had other obligations and

12 then we buy hand reviewed every case . It took some13 time

14 MR . MENDELSON : Now this month , July that

15 you started sending letters to the individual

16 defendants

17 MR . HILDUM We started a few weeks ago

18 shortly after I sent the June 4th letter. We to

19 put in a system where, again , we would do an

20 incremental individual letter to the defense attorney

21 and then copy their defendant Ethically , we wanted to

22 make sure we weren ' t communicating with somebody who

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101

1 was representedby counsel. So what we did was - - what

2 we' re trying to do is send the letter to counsel and a

3 copy to the individual. do that we have to go into

4 each file and try and find an address and then produce5 the letter . Part of the reason we' re doing that is

6 because in the last couple of years the court has

7 reconfigured the panel and a lot of attorneys who8 were on the panel a couple of years ago are no

longer on the panel. , I think , this was

10 actually a request from the court was, will you not11 only send a letter to the attorney but also to the

12 individual defendants that we can ensure that

13 there' s as much notice as possible

14 MR. MENDELSON : if somebody got a letter

15 today which is July 14th? Is today the 14th ?

16 MR. HILDUM : Correct .

17 MR. MENDELSON : And they were to call me up

18 and say Hildum sent this letter on June 4th to

19 Superior Court Trial Lawyers but then waited six weeks

20 before sending out letters to individuals. That would

21 not be correct? They ' re just part of this - - you had

22 said earlier it ' s roughly 40 a week that you' re - -

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MR HILDUM That ' s what we ' re attempting to

2 do Yes . I mean , it ' s not easy It' s a laborious

3 process but we ' re trying to get individual notification

4 to each person that we ' ve identified in the cases .

MR MENDELSON Would you provideme with a

copy of all the press releases that have been issued?

7 There was the February 25th , don ' t know if there were

8 any others.

MR . HILDUM : I don ' t recall any . I should be

10 able to put my hands on them .

MR MENDELSON : Well there was the newspaper

12 articles beginning of June and I don ' t know if they

13 were accompanied by a press release or not June 10th

14 was the front -page article . So I don' t know if there

15 was a press release done but if you would check and see

16 if there were Whatever press release - -

17 MR HILDUM : I ' ll check and see what I can

18 find. Yes, sir.

19 MR MENDELSON: And I had earlier asked if

20 you would provide a copy of Mr. Paegle' s report if

21 there is one and the IED report. Is that the May

22 report?

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MR . HILDUM: That ' correct.

MR. MENDELSON And the June 22nd MOU ?

MR HILDUM: Yes.

MR MENDELSON: And then separately you ' ll

5 get back to me on a recommendation whether we should be

6 providing more specificity in the law .

MR HILDUM: Correct.

MR . MENDELSON : That concludesmy questions.

MR. HILDUM: Thank you, sir.

MR MENDELSON: Thank you . Thank you , each

11 of you , for your time and your testimony And that

12 concludes this hearing. This has been a hearing on the

13 calibration issues with breathalyzer instruments and

14 the District' s response. The record in this matter

15 will close in two weeks , that is at 5 : 00 p . m on

16 Wednesday , July 28th , 2010 and the time is not 12 : 20 in

17 the afternoon and we are adjourned.

18

19 District of Columbia, Committee Meeting on Public

20 Safety was concluded .

21

22

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CERTIFICATE OF NOTARY PUBLIC

I NATALIA KORNILOVA , the officer before whom the

3 foregoing deposition was taken , do hereby certify that

4 witness whose testimony appears in the foregoing

5 deposition was duly sworn by me; that the testimony of

6 said witness was taken by me in stenotype and

7 thereafter reduced to typewriting under my direction ;

8 that said deposition is a true record of the testimony

9 given by said witness; that I am neither counsel for ,

related to, nor employed by any of the parties to the11 action in which this deposition was taken ; and ,

12 further, that I am not a relative or employee of any

13 counsel or attorney employed by the parties hereto, nor

14 financially or otherwise interested in the outcome of

15 this action.

NATALIA KORNILOVA

Notary Public in and for the

District of Columbia

21 My commission expires:

22 April 14 , 2012

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