Despite ongoing problems with the city's breath test machines, District of Columbia Attorney General Irvin Nathan testified yesterday that convictions for impaired driving were up in fiscal year 2011.
Nathan, appearing before the District of Columbia Council Committee on the Judiciary for an annual performance oversight hearing, said that until the breath test system is fixed, his office has been using urine-based testing results and remains "vigilant in prosecuting" those cases.
"What it means is that the Metropolitan Police Department and other agencies are being vigilant in arresting people who are perceived to be driving under the influence, and when we get those cases, we’re prosecuting them…as best we can," he said.
The police department stopped suing the Intoxilyzer machines after officials announced in early 2010 that they were incorrectly calibrated, causing blood alcohol readings that were too high by about 30 percent. The news sparked litigation challenging convictions and whistleblower lawsuits within the police department.
In fiscal year 2011, which ended Sept. 30, there were 1,161 convictions for impaired driving, an increase of 24 percent from the 940 convictions in fiscal year 2010.
Committee Chairman Phil Mendelson (D-At Large) expressed surprise at the numbers, especially since arrests for impaired driving were down. Nathan said that the arrest data is for the calendar year, not the fiscal year, which accounts for some of the difference, and also that cases don’t always resolve the same year a person is arrested.
Mendelson asked why the breath test machines are still needed, since urine tests are effective and can also be used to test for narcotics. Nathan said he’d prefer to have both, since urine testing is more costly and the statute for Driving While Impaired – which carries a mandatory minimum sentence, unlike Driving Under the Influence – is premised on the use of breath testing.
Yesterday’s hearing covered a range of other topics. Nathan defended his office against accusations from other litigants and judges that the office had repeatedly changed counsel as a legal tactic, calling it “unjustified.” Last March, U.S. District Chief Judge Royce Lamberth slammed the office for committing discovery violations “so extreme as to be literally unheard of.”
Changing attorneys as a litigation tactic “is definitely not a policy of the District,” Nathan said, adding, “It’s not our practice. I wouldn’t tolerate it if I saw it.”
Nathan said the office is preparing for the switch in 2014 from an appointed attorney general to an elected one. An internal committee is drafting recommendations on unresolved issues, such as whether the reporting lines for attorneys will change and whether any duties of the attorney general will need to shift to other agencies. Nathan said the council will need to decide whether the attorney general should be elected on a partisan basis. If it is partisan, and the federal Hatch Act isn’t amended to create an exception, most city employees, including the sitting attorney general, would be barred from running.
He cited a few big successes in 2011, including the civil settlement and consent judgment reached with former Councilman Harry Thomas Jr. and the city’s exit from court oversight of the mental health care system in the Dixon case, which marked the first major resolution of several longstanding judicial consent decrees in years.
The hearing was the second of three annual performance oversight hearings before the judiciary committee. The final hearing is scheduled for March 7.