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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".

Friday, October 20, 2017

State Trooper’s failure to follow rules could have thousands of NJ DWI guilty pleas vacated

State Trooper’s failure to follow rules could have thousands of DWI guilty pleas vacated. If the Supreme Court's requirements in State v Chun and State Police regulations were not followed, the convictions should be vacated. Why have laws and procedures if State Police are not required to follow them. 

20K N.J. residents busted for DWIs could have their cases appealed
Posted on October 20, 2017 at 7:30 AM

By S.P. Sullivan ssullivan@njadvancemedia.com,
NJ Advance Media for NJ.com   Star Ledger
 -- Prosecutors in New Jersey are notifying more than 20,000 people charged with drunken driving that their cases are under review after a State Police sergeant who oversaw breath-testing devices was accused of falsifying records, NJ Advance Media has learned.
County prosecutors have been sending letters to people charged with driving while intoxicated between 2008 and 2016 that a specially appointed judge would weigh "whether you are entitled to relief" based on the accusations against the sergeant.
Prosecutors and defense attorneys told NJ Advance Media the number of cases that could be thrown out as a result of the criminal inquiry is likely low. But the issue, which came amid a similar probe of the State Police drug lab, created a morass of legal challenges, which could take years to sort out.
Sgt. Marc Dennis, a coordinator in the State Police Alcohol Drug Testing Unit, was accused last year of lying on official documents about completing a legally required step in re-calibrating the machines, known as Alcotest devices, which are used to check the blood-alcohol level of accused drunken drivers.
The sergeant, who denies the charges against him, was allegedly observed skipping the step in calibrating just three machines. But the criminal accusations raised a cloud of doubt over every device touched by the trooper, who performed routine checks on devices used by local police across five counties.

"Sergeant Dennis' alleged false swearing and improper calibrations of these three instruments may call into question all of the calibrations performed by Sergeant Dennis over the course of his career as a coordinator," said one letter, a copy of which was obtained by NJ Advance Media.
The letters were sent in recent weeks to DWI defendants in Middlesex, Monmouth, Ocean, Somerset, and Union counties.
Dennis was charged in September 2016 with second-degree official misconduct, third degree tampering with public records and fourth degree falsifying records. He was indicted on those same charges in December, but the misconduct charge was dropped in a second indictment in June, records show. 
His attorney, Robert Ebberup, said Dennis denied any wrongdoing.
"At the end of the day, I'm sure he is going to be exonerated," Ebberup said. 
In the meantime, a retired appellate judge, Joseph Lisa, is sorting through the thicket of as many as 20,667 cases affected by the claims against the sergeant. 
   According to an April Supreme Court order appointing him as "special master," Lisa will rule on whether Dennis' alleged failure to perform a preliminary temperature check required under Supreme Court rules would "undermine or call into question the scientific reliability of breath tests subsequently performed" on those devices. 

The state Division of Criminal Justice has maintained that the check, while legally required, was not scientifically necessary.
But under state law, a person is guilty of driving under the influence if they have a blood-alcohol level of .08 percent. Tougher penalties kick in for those who blow a .10 or higher. 
Defense attorneys argue that because guilt or innocence or the level of punishment can hinge on a few decimal points, anything that suggests protocols weren't followed should bring test results into doubt. 
A spokesman for the state judiciary said a hearing date on the matter had not been set. 
The state also faces a potential class-action lawsuit filed on behalf of those defendants. That suit, filed in federal court, was dismissed in August but could be reinstated pending the state judge's decision
source: http://www.nj.com/politics/index.ssf/2017/10/20k_dwi_cases_could_be_tossed_amid_state_police_pr.html. 

Alcotest Litigation
    The following is a letter that was sent to all potentially affected individuals who were arrested for or convicted of drunk driving between 2008 and 2016 in Somerset County. The State Police Sergeant mentioned below also calibrated Alcotest machines that were in use in Somerset County during the aforementioned relevant time frame. 
The next case management conference is on November 2, 2017. The Special Master has indicated that he would like to start the hearing on November 28, 2017. Defense counsel has requested a later start date, but as of now the Special Master wants to start on November 28th.

Court records indicate that you were arrested for and/or convicted of drunk driving sometime between 2008 and 2016.  This letter is to inform you that it is possible there may have been an issue in the proceedings in your DWI case.   
            Specifically, it has been alleged that on or about October 6, 2015, and on or about October 7, 2015, New Jersey State Police Sergeant Marc Dennis, a former coordinator in the Alcohol Drug Testing Unit, calibrated the Alcotest 7110 MKIII-C (“Alcotest”) evidential breath testing instruments in the City of Asbury Park, the City of Long Branch, and the Township of Marlboro, without following the established protocol and then certified that the calibration was done in accordance with the required procedures.  Sergeant Dennis’s alleged false swearing and improper calibrations of these three instruments may call into question all of the calibrations performed by Sergeant Dennis over the course of his career as a coordinator (i.e. 2008 - 2016), and might possibly entitle you to future relief.  
            The New Jersey Supreme Court has assigned the Honorable Joseph Lisa, P.J.A.D. (retired and t/a on recall) to preside over a hearing to determine whether Sergeant Dennis’s failure to perform a specific step in the established protocol adversely affected the scientific reliability of the calibrations he performed, as well as any evidential breath tests conducted on those Alcotest instruments. The outcome of these legal proceedings, which are now underway, will determine whether you are entitled to future relief.
            If you believe that you are presently suffering any adverse consequences from your DWI conviction or pending DWI case, you should consult an attorney to determine if you are entitled to emergent, immediate relief.  When the above-noted hearing is completed, Judge Lisa will determine whether Sergeant Dennis’s failure to perform the specific step in the established protocol adversely affected the scientific reliability of the calibrations he performed. If the Judge decides that it did have such an affect, he will also determine whether you are entitled to relief therefrom. 
            Updates concerning the Alcotest litigation mentioned above will be available on the Somerset County Prosecutor’s Office website at www.scpo.net under the heading Alcotest Litigation. Please check that website for the most current status of that litigation as you will not receive any additional letters about that litigation from this office.

Very truly yours,
Thomas J. Chirichella
First Assistant Prosecutor

see also http://www.scpo.net/resources_alcotest.html