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.
Start_Module_11297
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
