The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Hector Molina-Aviles and nineteen others complained that Metropolitan Police Department Officer Kelvin King, sued in his individual capacity, owes them damages for alleged constitutional violations that led to their separate convictions for driving while intoxicated (DWI).*fn1 Officer King moves to dismiss, arguing that his alleged conduct does not meet the standard for a substantive due process claim; that Plaintiffs failed to allege that Officer King acted with the requisite culpability; and that qualified immunity bars this action. The motion will be denied without prejudice.
Plaintiffs allege constitutional violations arising in connection with their individual convictions for driving while intoxicated ("DWI").*fn2 In the District of Columbia, a conviction for DWI requires that the prosecutor prove that a defendant's blood alcohol level reached .08 grams per 210 liters of breath or above. D.C. Code § 50-2201.05(b)(1)(A)(i)(I). In each case, proof of this element was supplied by each Plaintiff's measured blood alcohol level tested on an Intoxilyzer 5000EN machine. However, on February 26, 2010, the District of Columbia announced that due to erroneous calibrations, its Intoxilyzer machines were generating readings that were too high; Plaintiffs allege that the readings were approximately thirty percent (30%) higher than a person's actual blood alcohol level. Compl. ¶¶ 92, 134.*fn3
As a result, Plaintiffs' convictions for DWI that relied upon such Intoxilyzer tests became immediately suspect. In subsequent proceedings, the DWI charges against Plaintiffs Fenwick, Turner, Manneh, and Nunez have been vacated or dismissed. Messrs. Fenwick, Turner, and Manneh originally pled guilty to the DWI charge. Later, Mr. Fenwick withdrew his guilty plea and all charges against him were dismissed. Pls.' Second Mem. Regarding Changed Status [Dkt. # 31] at 4-5. Plaintiffs Manneh and Turner also withdrew their guilty pleas, and the DWI charges against them were dismissed. Id. at 5-6. Plaintiff Nunez contested the DWI charge, but was found guilty after trial. Id. Then, on August 20, 2010, upon motion by the District of Columbia, Plaintiff Nunez's conviction for DWI was vacated. Id. at 9 n.8.*fn4
Officer King was head of the Impaired Driver Support Unit at D.C. Metropolitan Police Department ("MPD") at all times relevant to these consolidated cases. He was the principal officer responsible for calibrating the breath test machines and testing them for accuracy. Compl. ¶ 35-36. The District's Office of the Medical Examiner ("OME") delegated its responsibility for maintaining and calibrating the breath test machines to the Impaired Driver Support Unit, as well as its responsibility for testing the machines for accuracy. Id. ¶ 38.*fn5
Thereafter, the OME failed to oversee the calibration or accuracy testing of the Intoxilyzers, even though MPD continued to use a Chemical Test Certification Form (PD 809) that stated that the Intoxilyxers had been tested and found to be accurate within the past three months by the OME. Id. ¶¶ 63-67, 70.
The manufacturer of the Intoxilyzer provided the District with specifications to ensure the accuracy and reliability of the machines, which required the use of a simulator. Id. ¶¶ 78-79.
To be valid, the simulator introduces the gas of a simulator solution into the Intoxilyzer. This simulator solution must be of a known value that is independently tested and verified. The simulator uses this solution to create alcohol saturated air of a known value. That air is then pumped into the machine and tested.
Because the value of the alcohol saturated air is known, that known value can be compared to the score generated by the machine to determine if the machine is properly calibrated. A properly calibrated machine will report that the simulator gas is the known value; an improperly calibrated machine will report a different value. . . . [A] properly calibrated and accurate Intoxilyzer will test [the simulator] to read 0.10 grams per 210 liters of breath.
In addition, the manufacturer's specifications include procedures for calibrating the machine for accuracy. Similar to the simulator, this procedure consists of testing the machine against a series of known simulator solutions in various amounts. . . .
In addition, the manufacturer's specifications include procedures for proper maintenance of the machine in order to keep it in accurate, good working order.
Id. ¶¶ 80-83. Plaintiffs claim that the District failed to follow the manufacturer's specifications concerning the maintenance, calibration, and ...