- The Washington Times - Wednesday, January 9, 2013

D.C. Attorney General Irvin B. Nathan took the unusual step this week of opining on the dismissal of a speed-camera citation issued to a Metropolitan Police Department (MPD) sergeant who captured widespread attention last month from the public, consumer advocates and the media when he successfully appealed a Third Street Tunnel ticket to the Department of Motor Vehicles (DMV).

The Nathan opinion, which DMV officials cited as grounds for upholding the ticket while refusing to disclose it because of “confidentiality” concerns, has potential ramifications for 14,000 other motorists who received similar citations, and was the third time in a week that Mr. Nathan, the District’s top law officer, was called on to provide legal answers, if not political cover, for D.C. officials faced with controversial decisions.

In response to questions from The Washington Times regarding the consequences for thousands of motorists who received citations similar to the one Sgt. Mark Robinson got dismissed last month, DMV spokesperson Vanessa Newton said in an email: “DMV requested and has received a legal opinion from the Office of the Attorney General, which indicates that the hearing examiner made an error by dismissing the ticket, and that the ticket is valid.”

Ms. Newton confirmed that DMV officials bypassed the chief hearing examiner who ordinarily reviews such decisions, and stated that Mr. Nathan’s grounds for upholding the ticket were that the original hearing examiner was not “compelled” to dismiss it because technical flaws to the ticket were trumped by “clear and convincing evidence” that Sgt. Robinson exceeded the speed limit printed on the ticket.

She said she did not know how many times in the past Mr. Nathan’s office has been called on to review the dismissal of a single traffic ticket. She did not reply to questions on whether DMV appealed to Mr. Nathan’s office last year the dismissal by a hearing examiner of six tickets issued to former D.C. Council member Harry L. Thomas Jr., who is serving 38 months in a federal prison camp for stealing more than $350,000 from city youth programs.

Mr. Nathan’s office did not comment on the tunnel ticket and deferred questions about its legal opinion to DMV officials.

“City officials have decided not to release the opinion,” wrote spokesman Ted Gest. “DMV will give you its conclusion.”

Mr. Gest added that “it is not unusual for DMV to be asking legal advice from OAG on various matters,” but he did not respond to questions about whether the Thomas ticket dismissals prompted a request for a legal opinion.

As to the DMV’s claim that Mr. Nathan’s opinion on the tunnel ticket is “confidential,” Mr. Gest reiterated that “city officials” made that call, and added, “generally speaking, opinions for our client agencies are privileged advice.”

Sgt. Robinson, a 22-year veteran and former radar instructor in the MPD’s Automated Traffic Enforcement Unit, had been complaining to MPD officials and Council Chairman Phil Mendelson for months that the city’s ticketing program lacked minimum performance standards, so when he received what he thought was a defective ticket after driving through the Third Street Tunnel he took matters into his own hands and appealed the citation to a DMV hearing examiner.

The posted speed limit in the tunnel, which runs from Interstate 395 to Massachusetts Avenue, ordinarily is 45 mph. But because of a construction zone, the posted speed limit has been 40 mph. According to D.C. Municipal Regulations, the police department is required to enforce the posted speed limit, which also is known as the “absolute speed limit.”

Sgt. Robinson argued that because his ticket and the MPD’s photo-radar log showed the speed limit as 45 mph, and the posted speed limit was 40 mph, the department could not determine by “clear and convincing evidence” exactly what speed category was violated and therefore the ticket was defective and should be dismissed.

On Dec. 3, veteran DMV Hearing Examiner Matthew Uzukwu agreed and dismissed Sgt. Robinson’s citation.

However, after Sgt. Robinson appeared on numerous local television news programs and complained that more than 14,000 other similar tickets resulting in some $1.8 million in fines should also be dismissed, Mr. Nathan’s office was called on.

It would not be the first time in recent weeks. Mayor Vincent C. Gray recently sought an opinion from Mr. Nathan — later ignored by the board of elections — in which the attorney general said an effort to amend the Home Rule Charter to grant flexibility in how the city spends its money was on shaky legal ground; and Police Chief Cathy L. Lanier on Wednesday punted a decision to Mr. Nathan’s office on whether to charge NBC’s David Gregory with a gun crime after the “Meet the Press” host appeared to display a 30-round ammunition magazine during an interview with the NRA’s Wayne LaPierre on “Meet the Press.”