[R]UTLAND — The executive director of the Rutland Region Chamber of Commerce is facing DUI charges even though tests showed her blood alcohol level was below the legal limit for driving, newly released court records show.
Prosecutors are pressing their case against Mary S. Cohen on two fronts: that a chemist can show her blood alcohol content was above that 0.08 percent legal limit when she was pulled over more than an hour before her test; and that, even if below that number, she was still under the influence.
“She was driving exactly like a sober driver,” he said Monday. “She failed to signal — yes, that happens. That’s no indication of intoxication.”
Cohen, 54, of Rutland, pleaded not guilty to two charges Monday in Rutland Superior Court. She was released on conditions.
One of the DUI charges alleges that she drove with a blood-alcohol content higher than the 0.08 legal limit in Vermont. The second charge simply alleges she drove while “under the influence of intoxicating liquor.”
Ultimately she can be convicted of only one or the other.
The charges stem from a traffic stop early on Nov. 25 after a Rutland police officer said he saw her fail to properly signal while making turns as she was driving home.
Officer Jeffrey Warfle wrote in an affidavit that he asked Cohen how much she had had to drink and she replied, “Very little.”
According to that affidavit, Cohen told the officer she had had three alcoholic drinks, “(Mimosa), champagne, and orange juice,” the first around 7:30 p.m. and the last about 10 p.m.
A roadside breath test at 1:32 a.m. registered a blood alcohol content of 0.089 percent.
However, an evidentiary breath test at 2:44 a.m., more than an hour after the roadside one, at the Rutland police station registered a blood alcohol level of 0.061 percent, below the legal limit.
Documents filed in court Monday along with the charges include an affidavit from Jeffrey Dukette, a forensic chemist with the Vermont Forensic Laboratory in Waterbury.
“Given the particular factual information, I am able to estimate breath alcohol concentration [BrAC] values for breath samples obtained at a particular time for an earlier specified time,” Dukette wrote. “The estimate is founded upon known principles of absorption and elimination by the human body.”
Dukette wrote that he based his calculation on a breath test of 0.061 percent at 2:44 a.m. and a time of vehicle operation of 1:18 a.m. He added that the “assumptions” he used included “the subject’s” alcohol elimination rate of 0.015 percent per hour, based on “population averages as reported in peer-reviewed, published scientific literature.”
Then, he added, “The value calculated is an estimate due to the recognized variables in the analytical process and in biological and physiological variations among individuals.”
Dukette also assumed that the last alcoholic beverage was consumed at least 30 minutes prior to the time of the stop.
He calculated that blood alcohol content at the time of operation would have been about 0.082, taking into account the evidentiary test of 0.061 percent, plus 0.021 percentage points. “The value added is the estimated amount of alcohol eliminated between the time of operation and the time of the test,” Dukette wrote.
McLaughlin, Cohen’s attorney, questioned those assumptions Monday, including the one regarding his client’s elimination rate.
“Obviously, there is zero medical evidence as to what rate Mary eliminates,” the attorney said. “The state chemist will concede, as they have in the past, that the kind of the best estimate of elimination rate ranges from .01 to .02.”
Due to varying elimination rates as well as margins of error, McLaughlin said, “There was no way that Mary was over .08.”
He added that his client also was not showing signs of impairment while behind the wheel.
“There’s just nothing, outside of lack of signaling, which, unfortunately, most of us do at 1:30 in the morning,” he said. “It’s just frustrating this is charged.”
Rutland County State’s Attorney Rose Kennedy has said she can’t comment on a pending case.
However, talking generally in a previous interview, the prosecutor said she considers several factors in such cases before deciding whether to bring a charge, including how a person was driving at the time of the stop, how well he or she performed on the field sobriety tests, and witness statements.
“Remember,” Kennedy said, “in the state of Vermont a DUI is either driving under the influence or driving above a .08.”
(Correction: An earlier version of this story misstated the result of the roadside breath test.)
