A Montgomery County Police officer faces a perjury investigation after she testified in April that she found a man arrested for driving under the influence behind the wheel of a parked car. A recording from a security camera showed he was in the back seat, lying down, with his feet out the open passenger side door when she approached him.
"We are aware of the allegation and will be conducting an investigation," Montgomery County Police spokeswoman Lucille Baur said Wednesday.
The Montgomery County State's Attorney's Office referred the case to the Howard County State's Attorney's Office because county prosecutors might be questioned, said Seth Zucker, a spokesman for the Montgomery County State's Attorney's Office.
George Zaliev, 56, of Rockville, was arrested about 7:30 p.m. May 3, 2008, for DUI at the parking lot of Sarkissian Interiors at 8537 Atlas Drive in Gaithersburg. A preliminary breath test showed a blood alcohol content of 0.15, nearly twice the legal limit.
At his Montgomery County District Court trial, Officer II Dina Hoffman testified 11 times that she found Zaliev in the front driver's seat. She said shook him awake and he was not cooperative in doing field sobriety tests.
Zaliev's attorney, Paul E. Mack of Columbia, used a laptop computer to show a video from a security camera at Sarkissian that recorded the arrest.
The security tape, reviewed by The Gazette, shows Hoffman arrived and immediately walked up to Zaliev lying in the back seat.
A message left for Hoffman was not returned immediately. A three-year veteran, she continues to work while the allegation is investigated.
After Judge Dennis A. McHugh viewed the tape, he ruled the arrest lacked probable cause. The judge found Zaliev not guilty.
"I've done enough of these that I know without the video, it would have been my client's word against the officer's, and I probably wouldn't have won," Mack said in an interview.
Mack came forward after receiving a transcript of the trial.
By lying in the back seat of the car, Zaliev did nothing illegal and should not have been arrested, Mack said. Case law is clear that people in the back seat of a parked vehicle are not driving under the influence.
Zaliev, an upholsterer, was waiting in his friend's car for his friend to get off work and drive him home, Mack said.
In her testimony at the April 2 trial, Hoffman claimed she arrived and approached Zaliev on the left side of the car where he sat behind the wheel asleep. She described shaking his shoulder to wake him.
"He was just sitting in the front seat, kind of sitting there sleeping," Hoffman testified.
At several points Mack asked the officer if she was certain Zaliev was in the front and not the back.
"Do you recall him being in the back seat on the passenger side?" Mack asked on cross examination.
"No, not when I first got there, no," Hoffman replied.
"Are you absolutely sure?" Mack asked again.
"Yes," Hoffman testified. "I did have him sit there while I waited for another officer to come."
After the recording was played in the courtroom, Hoffman was asked whether she was wrong about Zaliev's position in the car.
"Yeah, I must have been," Hoffman testified. "My apologies. It's been over a year. I deal with a lot of these cases every day so my apologies."
But Hoffman then said Zaliev "must've admitted to me that he was driving the vehicle at some point."
On further questioning, Hoffman testified she had not told that to either the prosecutors or to Mack before.
"You were wrong about him giving you his license while he was in the front seat?" Mack asked.
"Yes," she said. "He gave me his license, but I guess he was in the back seat."
If Zaliev had been convicted, he would have faced a maximum sentence of $1,000 fine and a year in jail.
"If it was determined there's perjury in this case, this is the kind of case that would undermine the authority of police and the perception of good officers out there doing their job," said Christopher Heffernan, chairman of the Maryland State Bar Association's litigation committee. "This would damage the police officers who are doing a good job out there to protect us. This is disturbing to everyone who looks up to the police and relies on them to protect us from the bad guys."
Although allegations of perjury are not uncommon, it is very rare that such cases are ever brought to trial, and Heffernan said he could not remember any that involved police officers.
Mack said he sent a copy of the transcript to Montgomery County State's Attorney John McCarthy and County Police Chief J. Thomas Manger.
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http://www.washingtonpost.com/wp-dyn/content/article/2009/05/06/AR2009050604294.html
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