Drivers Can Pursue Cop for Botched DWI Tests

WASHINGTON (CN) - Motorists ensnared for drunken driving may have a civil rights case against the D.C. cop who allegedly knowingly calibrated breath-testing devices to produce higher alcohol-content readings, a federal judge ruled.

District officials announced in February 2010 that its Intoxilyzer machines were improperly calibrated to generate higher readings, leading to a swath of dismissed or vacated drunken-driving charges.

The consolidated lawsuit presented claims from 20 different individuals charged and convicted of driving while intoxicated, but just five plaintiffs remain after a previous dismissal order.

They claim that Officer Kelvin King, as head of the Impaired Driver Support Unit of the Metropolitan Police Department, calibrated the city's Intoxilyzer 5000EN machines so that they produce readings that were 30 percent higher than a person's actual blood alcohol level.

"The complaint alleges that Officer King learned from the retained expert that his methods were wrong and yet he knowingly failed for years, to make any corrections," U.S. District Judge Rosemary Collyer wrote. "If true, these allegations suggest the intentional manufacture of false evidence, which has been found to violate due process since Napue v. Illinois."

King moved to dismiss, claiming qualified immunity and that the plaintiffs failed to prove he acted with requisite culpability for a substantive due process claim.

Collyer disagreed Monday. "Plaintiffs claim damages because they were 'wrongfully convicted of a DWI and wrongfully sentenced to mandatory jail time, strip searched in jail, forced to serve post-incarceration probation, forced to suffer the loss of [their] driving privileges, forced to suffer the payment of increased insurance premiums, forced to suffer consequences at [their] job[s] due to missing work days from serving jail time, and forced to suffer emotional distress, mental anguish, loss of reputation, and travel restrictions from being falsely and unlawfully convicted of a DWI,'" Collyer wrote.

King and prosecutors were allegedly "well aware of the improper calibration of the Intoxilyzers but continued to use them and rely on them in court," according to the 13-page ruling.

Discovery will show whether qualified immunity protects King, Collyer added. Though she upheld the Fifth Amendment, Collyer also dismissed an allegation that The District of Columbia violated Eighth Amendment protections against cruel or unusual punishment.

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