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McCain v. District of Columbia

United States District Court, D. Columbia.

October 6, 2014

KIMBERLY MCCAIN, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants

Page 526

For KIMBERLY MCCAIN, Plaintiff: Frederic W. Schwartz, Jr., LEAD ATTORNEY, LAW OFFICE OF FREDERIC SCHWARTZ, Washington, DC.

For DISTRICT OF COLUMBIA, Defendant: Chad Alan Naso, OFFICE OF THE ATTORNEY GENERAL, DISTRICT OF COLUMBIA, Washington, DC; Shana Lyn Frost, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.

Page 527

MEMORANDUM OPINION

Gladys Kessler, United States District Judge.

Plaintiff Kimberly McCain (" Plaintiff" or " McCain" ) brings this action against the District of Columbia (" the District" ) and Metropolitan Police Department (" MPD" ) Officers Kelvin King (" Officer King" ) and Richard Moats (" Officer Moats" ) (collectively, " Defendants" ) for negligence, gross negligence, negligent supervision, intentional infliction of emotional distress, and violations of her constitutional rights pursuant to 42 U.S.C. § 1983.

This matter is before the Court on Defendants' Motion to Dismiss [Dkt. No. 4]. Upon consideration of the Motion, Plaintiff's Opposition [Dkt. No. 7], Defendants' Reply [Dkt. No. 8], Plaintiff's Supplemental Opposition [Dkt. No. 10], Defendants' Response to the Supplemental Opposition [ Dkt. No. 11], Defendants' Notice to the Court dated August 14, 2014 [Dkt. No. 14], and the entire record herein, and for the reasons stated below, Defendants' Motion shall be granted in part and denied in part.

I. BACKGROUND

A. Factual Background[1]

On July 12, 2009, Plaintiff was arrested in the District of Columbia for

Page 528

drunk driving. Amended Complaint (" Am. Compl. " ) ¶ ¶ 8-9.[2] After failing a series of field sobriety tests, she was taken to " a police substation" where she was twice administered a breath alcohol test using a machine known as an Intoxilyzer 5000EN (" Intoxilyzer" ). Id. ¶ ¶ 8-10. The results of Plaintiff's Intoxilyzer tests were 0.34 and 0.37 grams per 210 liters of breath, respectively, indicating that her breath alcohol level was more than four times the legal limit. Id. ¶ 11.[3]

The District charged Plaintiff with three criminal offenses: (1) Driving While Intoxicated (" DWI" ), in violation of D.C. Code § 50-2201.05(b) (1) (A) (i) (I); (2) Driving Under the Influence (" DUI" ), in violation of D.C. Code 50-2201.05 (b) (1) (A) (i) (II); and (3) Operating While Impaired (" OWI" ), in violation of D.C. Code § 50-2201.05 (b) (2) (A). See Am. Compl. ¶ 16; see also McCain Crim. Dkt. at entries dated July 23, 2009.

Under the impaired driving laws in effect at the time of Plaintiff's arrest, the DUI and OWI charges required the prosecution to prove that, as a result of alcohol consumption, she was " less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to [operate a vehicle] with safety to [her] self or the public." Karamychev v. District of Columbia, 772 A.2d 806, 812-13 (D.C. 2001) (citation omitted); see also D.C. Code § § 50-2201.05 (b) (1) (A) (i) (II); 50-2201.05 (b) (2) (2009). The DWI charge, by contrast, required the prosecution to prove only that Plaintiff's alcohol levels exceeded .08 grams per 210 liters of breath. See id. § 50-2201.05 (b) (1) (A) (i) (I).

Plaintiff was advised by her attorney that her Intoxilyzer results could not be successfully challenged in court, and, consequently, on October 1, 2009, she pled guilty to the DWI charge. Am. Compl. ¶ 17; see also McCain Crim. Dkt. at entries dated Oct. 1, 2009. On October 8, 2009, she was sentenced to ten mandatory days in jail, a 28-day residential alcohol treatment program, $400 in fees and fines, and one year of supervised probation. Id. ¶ 18; see also McCain Crim. Dkt. at entry dated Oct. 8, 2009.[4]

On July 26, 2010, after serving her jail time and satisfying all of the terms and conditions of her sentence, Plaintiff received a notice from the District of Columbia Office of the Attorney General (" OAG

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notice" ) advising her that the Intoxilyzer machine used to test her breath alcohol levels on July 12, 2009, had not been properly maintained and calibrated. Am. Compl. ¶ ¶ 19, 23. In particular, the OAG notice appears to have alerted Plaintiff, as she alleges in this case, that Defendant Officer King, who was responsible for maintaining the Intoxilyzer machines for the Metropolitan Police Department, used " out-dated, deteriorated, and uncertified simulator solutions" to calibrate the machines and failed to test the machines every three months, in accordance with the manufacturer's specifications. Id. ¶ ¶ 38-41. Plaintiff alleges that the " forensically invalid and unscientific procedures" used by Officer King to calibrate and maintain the machines " resulted in inaccurate, forensically invalid and inflated Intoxilyzer readings, which rendered [her] breath test results invalid and inaccurate." Id. ¶ ¶ 40, 45.

In addition, she claims that the District knew, at least two years prior to issuance of the OAG notice, that its Intoxilyzer machines were not properly maintained but failed to " take any corrective action" until February 26, 2010, when it " began advising judges that MPD lacked confidence ...


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