The last post discussed some of the background involved in the District of Columbia’s problems it had with its Breathalyzer program. The Metropolitan Police Department not only miscalibrated the machines to read 40 percent higher than they were supposed to but also failed to conduct accuracy testing for a period of almost ten years. As I discussed in Part I, I started an appeal in 2013 for a person who had plead guilty to DUI and served mandatory jail time based on breath scores for a machine that had not been accuracy tested.
Through another attorney he had tried to move to withdraw his guilty plea. The government vigorously contested his motion. While the government had agreed to allow hundreds of people to withdraw guilty pleas that plead or were found guilty during the 17 month period the machines were miscalibrated, it did not want to open up Pandora’s Box for ten years of convictions in which MPD failed to conduct accuracy testing. Unfortunately, the trial judge agreed and denied the motion without a hearing. After I filed my brief, it took the government one year to respond. I did not ask the Court of Appeals to allow my client to withdraw his guilty plea. Rather, I argued that the trial court had abused its discretion by not having a hearing on the motion.
The case was set for oral arguments in April of this year and ultimately the District of Columbia Court of Appeals agreed with me. The Court of Appeals reversed the trial judge and remanded it for a hearing on whether my client was entitled to have a hearing on the motion. Any hearing on that motion would reopen up the flood gates on the District government’s scandalous Breathalyzer program. I planned to subpoena Kelvin King, the officer in charge of the program for all these years, Ilmar Paegle, the whistleblower who discovered the problems, as well as potentially prosecutors and supervisors from the OAG. Questions of what the government knew and when they found it out have to this day never been answered. Did prosecutors at the OAG’s office knowingly allow defendants to plead guilty to DWI in cases based on faulty Breathalyzer scores?