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Thursday, March 19, 2009 | B.D. Howard, who is looking to run for City Council next year, has also filed suit against the city over a 2007 drunken-driving arrest.

Howard, 29, was arrested in November 2007 on a DUI charge in connection with a solo car accident in San Diego. It was the second time in three months that Howard had been arrested for DUI. Howard said in an interview that in both cases, other people were driving his car.

Howard was never prosecuted. The City Attorney’s Office never received paperwork from the Police Department regarding the first arrest and dropped the case relating to the November arrest, spokeswoman Gina Coburn said.

Last year, Howard sued the city, state and the officers involved in the second arrest, saying they intentionally manipulated witness statements to arrest and jail Howard. Representing himself, Howard sought damages for false imprisonment, battery, assault, intentional infliction of emotional distress, and violation of his civil rights.

Reached on Wednesday, Howard said he had changed his mind about suing the city and was planning to drop the lawsuit. “I don’t want to cost the taxpayers any money,” he said.

Howard has announced his intent to run for the District 8 seat being vacated next year by Council President Ben Hueso, who is running for state Assembly.

Howard served as Hueso’s campaign treasurer during Hueso’s first run for council in early 2006 and worked as a council representative in Hueso’s office from January 2006 to August 2007. He also ran Stephen Whitburn’s campaign in District 3 last year.

Howard said he did not think the arrests would work against him in a campaign since he was cleared of all charges.

“It’s kind of a moot point because the second one was dropped (and) the first one was never charged, so I don’t see how that would be an issue,” he said. “My record’s clean. I have no convictions, nothing.”

The arrest that prompted Howard’s lawsuit stemmed from a Nov. 18, 2007, accident in which a BMW was found abandoned, partially blocking the roadway, after apparently hitting a concrete barrier on the Interstate 5 off ramp to 19th Street, according to a California Highway Patrol report. The car, which had a cracked left axle and crumpled fender, was registered to Howard. His license had been suspended from his earlier DUI arrest.

San Diego police found Howard at his home about a block from the crash site, according to police reports. Police said they heard him shouting to his roommates not to let the police in and he smelled strongly of alcohol and mumbled. According to a police report, Howard initially denied owning a car and said he had been asleep all night.

Police said Howard was wearing jeans and a gray tank top, but said they saw a red bandana nearby. A witness had said the driver was a black man wearing a red bandana around his neck and a tan shirt.

Based on those details and the fact that Howard was the only person in the house who was a black man, as the witness described, police detained Howard. A breath test showed Howard’s blood alcohol content was 0.15, well above the legal limit of 0.08.

The CHP officer recommended Howard be charged with DUI, hit and run and driving on a suspended license. The case against Howard was dismissed in November 2008 after the City Attorney’s Office decided not to prosecute, Coburn said.

Coburn didn’t know why the case was dropped, noting that it was a decision made under the previous administration. But she said such cases are sometimes dismissed if attorneys believe when reviewing a case that they can’t prove charges beyond a reasonable doubt.

Howard filed suit last year against the CHP officers and San Diego police officers involved in his arrest, as well as the state and city, which he said had failed to supervise and control the officers. In his initial complaint, Howard said he was seeking more than $1 million in damages.

Howard said the officers lied and misrepresented the statements of a witness, Barbara Wood, who talked to the driver after the crash.

In an administrative hearing on the decision to suspend Howard’s license, Wood testified that after seeing Howard in a police cruiser, she told police, “That’s not the man.” She said she told police the driver was fairer-skinned, had longer hair and wore different clothes.

In the CHP report, the officer said Wood “advised she could not be sure if Howard was the driver only because she thought the driver had longer hair.”

In an interview Wednesday, Howard said his roommate had taken the car while he was out.

“I usually let them borrow my car,” Howard said. “He wasn’t responsible, I guess.”

Howard said he took a cab home that night. He said he never told police that his roommate was driving the car because he didn’t have to.

“It’s my Fifth Amendment right,” he said. “I don’t have to say anything, it’s not my job.”

As for the police statements that Howard was the only black man living in his house, Howard noted that his roommates were Brazilian and dark skinned, which may have led to the witness description.

“She describes anyone under the sun who was there,” Howard said. “She was a bad witness.”

Indeed, it’s undisputed that Wood saw Howard at least twice — at the DMV hearing and when he was in police custody. But Wood said at one point that Howard, who was present at the hearing, didn’t look like the man she saw in the squad car, though that man was undeniably Howard.

The CHP documents, police statements and DMV hearing transcript were filed with the court as part of another lawsuit Howard filed seeking to overturn the state’s decision to suspend his license. Howard dropped that suit in June 2008 after he says he settled with the DMV.

Howard had previously been arrested for DUI on Sept. 2, 2007. There was limited public information available because the San Diego Police Department doesn’t typically discuss cases that are more than 60 days old, said Det. Gary Hassen, a police spokesman. However, DMV records indicate Howard had a blood alcohol content of 0.12 when he was arrested.

Howard said police apparently received a call about the car, which he said was being driven by a friend while Howard was asleep in the car. By the time police approached them, Howard said the car was parked and the friend was no longer behind the wheel.

Howard said the police asked who owned the car, but not who was driving. Howard said his friend, who spoke limited English, didn’t volunteer the information. Howard said he invoked his Fifth Amendment right because he felt uncomfortable telling the police he wasn’t driving.

“I didn’t feel like they were going to believe anything we’d say,” Howard said.

Asked about the likelihood of two false DUI arrests in such a short time period, Howard said he had simply been “in the wrong place at the wrong time.”

“It’s just bad luck,” he said. “It happens.”

Please contact Rani Gupta directly at rani.gupta@voiceofsandiego.org with your thoughts, ideas, personal stories or tips. Or set the tone of the debate with a letter to the editor.

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