Fireman says 9/11 dust skewed DUI test

April 27, 2006

Southern Vermont

BRATTLEBORO — A New York City firefighter claims the 9/11 terrorist attacks caused a lung disorder that skewed a breath test when he was arrested for drunken driving in Vermont three years later.

Rolf. W. Hettinger, 50, of Bethpage, N.Y., is charged with two counts of driving under the influence in December 2004. His attorney argued Wednesday at the start of his two-day trial in Brattleboro District Court that the smoke and dust damage to his lungs from Sept. 11, 2001, is so severe that the DUI test results are not applicable.

William Kraham of Brattleboro, Hettinger's attorney, is expected to call a chemist from the University of Washington today to testify that the Breathalyzer test results could be inaccurate due to his client's weak lung capacity.

Kraham told the jury during the trial's opening arguments Wednesday that Hettinger's lung capacity is two-thirds of what it should be.

"The Breathalyzer test is worthless and does not represent his blood alcohol content," Kraham said. "It grossly overestimated the amount of alcohol in him at the time."

Deputy State's Attorney Nathaniel Seeley introduced three witnesses Wednesday, including the Wilmington police officer who arrested Hettinger on Dec. 4, 2004, and a state Department of Health chemist who testified about the specifics of alcohol breath tests.

Officer Ethan Kipnes testified that Hettinger swerved into the oncoming lane twice while driving north on Route 100 before he pulled him over on suspicion of drunken driving. He said he instantly smelled alcohol and saw that Hettinger had watery and bloodshot eyes.

Hettinger told him he'd consumed two or three beers in the previous 90 minutes, Kipnes testified. The officer said Hettinger failed a roadside sobriety test and then went to the Wilmington Police Department to take the Breathalyzer after consulting with his attorney.

Kipnes also testified that Hettinger during his arrest repeatedly stressed his past employment in law enforcement and his job as a firefighter. The officer testified that Hettinger was asking for a "professional courtesy" and be released without being charged.

The jury was removed from the courtroom in the midst of that part of the testimony, due to objections from Kraham. The lawyer said jurors shouldn't hear it because the alleged conversation was not recorded on the police cruiser's equipment or in Kipnes' official affidavit.

The officer said he didn't bring the recording system's microphone outside the car, where the conversation took place. He didn't explain why it wasn't in his affidavit. With the jury out of the room, he repeated that Hettinger wanted to be released.

"He mentioned it two or three times," Kipnes said. "He was looking for a break."

Hundreds of people living or working near the former site of the World Trade Center — including firefighters and police officers — are suffering from respiratory illnesses from the dust and smoke that billowed into the streets when the towers collapsed on Sept. 11, 2001, according to news reports.

Earlier this month, an autopsy confirmed dust lodged in a 34-year-old New York City police officer's lungs as his official cause of death. Nearly 400 first responders have left the jobs early due to breathing problems following the attacks, according to news reports.

Kraham declined to comment after the court closed Wednesday. The case is expected to wrap up today.