TOUGHER DRUNKEN-DRIVING BILL CUTS BORDERLINE CASES

                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: FRIDAY, February 5, 1993                   TAG: 9302050278
SECTION: VIRGINIA                    PAGE: B1   EDITION: METRO 
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE:                                 LENGTH: Medium
TOUGHER DRUNKEN-DRIVING BILL CUTS BORDERLINE CASES
Mark Henne had just walked a straight line without stumbling and recited the alphabet without slurring.
But a breath test taken the morning of Nov. 7 nonetheless showed his blood-alcohol content was 0.12 percent - above the 0.10 level at which state law presumes someone too intoxicated to drive.
Henne, the town manager of Rocky Mount, recently was acquitted of driving under the influence in Vinton by a judge who apparently found the field sobriety tests more convincing than the blood-alcohol test.
Such a ruling is not unusual, according to Roanoke Valley prosecutors and defense attorneys. But it would happen far less often under a proposal before the General Assembly.
If the bill becomes law, the blood-alcohol level at which someone is presumed too impaired to drive would be lowered from 0.10 to 0.08 percent.
"It's been demonstrated that you are considerably impaired if you have a 0.08 blood-alcohol content in your bloodstream," said Roanoke Commonwealth's Attorney Donald Caldwell, who supports the measure along with other area prosecutors.
Under current law, there is a rebuttable presumption of guilt for someone with a blood-alcohol content of 0.10 or more. That means they are presumed impaired unless they can show otherwise through field sobriety tests or other evidence - as Henne did.
Because there sometimes are questions about the reliability of blood-alcohol tests, judges can be reluctant to convict if the level is near 0.10 and there are no other signs of intoxication, lawyers said.
If the level is reduced to 0.08, Virginia would have one of the toughest drunken-driving laws in the nation. Eleven states have laws that carry a presumption of intoxication with a 0.08 level or above.
Because the bill has cleared the House Courts of Justice Committee, where it has died in previous years, some observers believe it has a chance of passing this session.
Gene Hartsell, coordinator of People Against Impaired Drivers in Roanoke, likes the proposal. "One drink or one can of beer takes an hour to get out of your system," he said. "If you have three or four within the hour, depending on your weight, your motor skills are affected."
But police officers often are reluctant to charge a suspected drunken driver with a borderline blood-alcohol level, Caldwell said.
"Law enforcement officers on the street look at what the courts do," he said.
Some defense attorneys are concerned that if the proposal is passed, people who are not significantly impaired could be convicted.
"I understand some people have had some horrible things happen as a result of drunk drivers, and it's hard to criticize those people," Salem lawyer Charlie Phillips said. "But I think it's an overreaction."
Defense attorneys often challenge the reliability of blood-alcohol tests, especially the breath analysis method. People who are arrested on suspicion of driving under the influence are given the choice of a blood test or a breath test.
Lawyers have found a variety of ways to challenge the breath test - including the assertion that an untimely belch just before the test was taken boosted their client's breath to an inaccurate level.
In Henne's case, he elected to take the breath test.
Although Henne did well on some field sobriety tests, he failed at least two, according to Crystal Burton, the Vinton police officer who pulled him over near Fallon Park.
Henne was unsteady on his feet when he was asked to walk heel-to-toe, she said, and also failed the finger-to-nose test. He passed the alphabet test and was able to pick up his driver's license with no difficulty after Burton dropped it to the ground.
Burton said Henne was polite and cooperative, saying he had had a couple of beers at a Vinton nightspot.
Judge John Apostolou dismissed the charge. Defense attorney Richard Lawrence and prosecutor Buck Heartwell declined to discuss the case.
The week after he was arrested, Henne was disciplined by Rocky Mount Town Council. He was suspended without pay for 30 days and ordered to turn in the keys to his town car. Henne was driving a town car when he was pulled over.
Under the current law, Burton said, many police officers are wary of charging someone with a 0.08 or 0.09 blood-alcohol content, even if they are certain the person is a danger on the road.
"If they get a lawyer, they can just eat us up in court," she said.

by Archana Subramaniam by CNB