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Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Sunday, January 22, 2017

NJSBA Objects to State’s Request to Ease its Own Alcotest Calibration Process

Capitol Report

NJSBA Objects to State’s Request to Ease its Own Alcotest Calibration Process

The NJSBA called on the Supreme Court to protect New Jersey citizens and “preserve the confidence in and integrity of the judicial system” by denying a special master appointment to oversee potential challenges to almost 21,000 driving while intoxicated (DWI) convictions and holding that the Court’s decision in State v. Chun, 194 N.J. 54 (2008), is dispositive of the issue of whether the state’s previously proffered calibration test is scientifically reliable. The Court invited counsel to the parties in Chun, including the association, to respond to the state’s motion requesting an order that includes issuing a notice to the bar and appointing a special master to conduct an evidentiary hearing to determine whether the failure to use a National Institute of Standards and Technology (NIST)-traceable digital thermometer prior to beginning calibration of the Alcotest instruments undermines the scientific reliability of the instruments.

Special Master

The state’s request for a special master was made following filing of criminal charges against New Jersey State Police Sergeant Marc Dennis, who is alleged to have failed to use the NIST-traceable digital thermometer to test the temperature of simulator solutions prior to starting the actual calibration of three separate Alcotest instruments. The discovery led to the identification of 20,667 individuals who provided evidential breath samples on those instruments. Among the charges against Dennis is that he falsely certified that he performed calibrations within the guidelines of the New Jersey Office of Forensic Sciences. Those charges are still pending.

The state argues that despite Dennis’s alleged failure to use a NIST-traceable digital thermometer prior to starting the actual calibration of the machines, the failure does not render the resulting Alcotest readings scientifically unreliable. It argues that the use of the thermometer is not required by the manufacturer of the machines, Draeger Safety Diagnostics, Inc. In further support of its argument, the state pointed out that New Jersey is the only state to incorporate this step, and the request by the Office of Forensic Sciences was included “for a practical purpose—to confirm that the simulator solutions are within the accepted temperature range before the coordinator initiates the actual calibration.”

Sunset of the Alcotest

The Alcotest machine has a storied past originating in the Chun matter, where the Supreme Court found it to be “generally scientifically reliable” and “sufficiently reliable” for use as an evidential breath-testing device in DWI prosecutions in the state. Chun at 54, 65, 148. The Court issued an order that required the state to ensure the device was in working order and had been inspected according to procedure, and to administer the test according to official procedure.
Further challenges to the test in State v. Chun, 215 N.J. 489 (2013), also known as Chun II, affirmed the scientific reliability of the Alcotest machine. Chun II was initiated by defense attorneys and the state relating to the state’s failure to make and implement software changes required in Chun. In Chun II, the Court granted the state’s request to be relieved of making and implementing software changes because of “the sunset of the Alcotest,” which the state proffered would no longer be serviceable after 2016, and was in the process of evaluating alternate breath-testing devices for implementation. Chun II at 3.

In Cassidy, the association argued that well-settled law in Chun, “based on years of scientific litigation and the State’s own established procedure,” is being relied upon to relieve the burden of facing a challenge of almost 21,000 individuals who were tested on the allegedly defective Alcotest machines. In urging the Court to deny the state’s request for a special master, it pointed out that it is unlikely these individuals would expend additional funds beyond that which they paid in fines, to reverse their convictions and because DWI prosecutions are proven in two ways—breath test readings and observations. As such, the actual number of cases that would be affected by the actions of Dennis would be a fraction of those identified by the state.

“The larger issue is whether the Court should use its ultimate legal power to diminish the rights of millions of New Jersey citizens in order to help the State prosecute a few drunk driving cases where a state police officer is now accused by the state itself of intentionally falsifying data in many of those cases,” noted the association in its brief. The association urged the Court to consider “the rights of all citizens” and balance those rights against the interest of the state “to cure the illegal conduct of one bad state police officer.”

Joining the NJSBA in urging the rejection of a special master is Evan M. Levow, who pointed out that three other states—Massachusetts, Connecticut and Washington—are “looking into the reliability of the Alcotest.”

Matthew W. Reisig urged the Court to grant the state’s request for a special master and to formally notify defense attorneys and their clients who may have been affected by Dennis’s alleged actions. John Menzel also urged the Court to notify these defendants, but asked the Court to deny the assignment of a special master, arguing that the scientific reliability of the NIST-traceable thermometer had been argued before and validated by the Court, and relied upon by the public and law enforcement since the use of the Alcotest machine in New Jersey.

The NJSBA continues to monitor this matter.

December 12, 2016

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.
source http://tcms.njsba.com/personifyebusiness/Advocacy/GovernmentAffairs/CapitolReport/CapitolReportArchive/December12,2016.aspx