Notice to the Bar
ORDERS BY JUDGE LISA AS SPECIAL MASTER IN STATE V. EILEEN CASSIDY
STAYING CERTAIN ALC0TEST-RELATED DWI CASES
The Supreme Court granted direct certification in the matter of State v. Eileen
Cassidy pursuant to Rule 2: 12-1. On April 6, 2017, the Court appointed Appellate Divison
Judge Joseph F. Lisa, Retired on Recall, as Special Master. The Court directed Judge
Lisa to determine whether the failure of New Jersey State Police Sergeant Marc Dennis
to test the simulator solutions with the NIST-traceable digital thermometer before
calibrating an Alcotest machine (breath-testing device) undermines or calls into question
the scientific reliability of breath tests subsequently performed on the Alcotest machine.
The Alcotest machines calibrated by Sergeant Dennis during his tenure with the State
Police were used in over 20,000 DWI prosecutions. Although most of these cases were
filed in five counties (Middlesex, Monmouth, Ocean, Somerset and Union Counties), there
have been cases in twelve counties total.
On November 2, 2017, Judge Lisa issued an Order (attached) requiring a stay in
all open DWI cases where the Alcotest reading was taken using a machine serviced by
Sergeant Dennis ("Dennis" cases). That same order provides that a stay is also to be
granted, unless the defendant expressly waives his or her right to the stay, on any new
case (e.g., new DWI, refusal or driving while suspended charge) where an original
"Dennis" DWI conviction constitutes a predicate offense to enhance the gradation or
applicable punishment in that subsequent proceeding. Finally, judges handling these
cases have the discretion to stay outstanding sentence provisions pending the Supreme
Court's ultimate decision in State v. Cassidy.
Additionally, on November 28, Judge Lisa issued a Supplemental Order (attached)
providing that the burden for determining whether or not the defendant provided a breath
sample on an Alcotest device calibrated by Sergeant Dennis rests with the prosecutor
handling the case. The prosecutor is also required to produce and provide documentary
evidence of that determination to the defendant and the court. Further, in any proceeding
in any court involving a prosecution for an offense in which a prior "Dennis" DWI conviction
constitutes a predicate offense that can enhance the gradation or applicable punishment
in that new case, or involving a sentence emanating from such a case that has been
adjudicated, the burden rests with the prosecutor to determine whether or not the
defendant provided a breath sample on an Alcotest device calibrated by Sergeant Dennis
in that prior DWI case, and to produce documentary evidence of that determination to the
defendant and the court.
Glenn A. Grant, J.A.D.
Acting Administrative Director
Dated: December 6, 2017
•c' I
CHRISTOPHER S. PORRINO·
ATTORNEY GENERAL OF NEW JERSEY
BY: ROBERT CZEPIEL, JR.
SUPERVISING DEPUTY ATTORNEY GENERAL
DIVISION OF CRIMINAL JUSTICE
PROSECUTORS SUPERVISION & TRAINING BUREAU
25 MARKET STREET
P.O. BOX 085
TRENTON, NEW JERSEY 08625
(609) 984-0941
STATE OF NEW JERSEY,
Plaintiff-Movant,
v.
EILEEN CASSIDY,
Defendant-Respondent.
. •
SUPREME COURT OF NEW JERSEY
DOCKET NO. M-244/245/246
SEPTEMBER TERM 2016 078390
CRIMINAL ACTION
ORDER GRANTING STAY
OF PROCEEDINGS IN OTHER COURTS
THAT RAISE ISSUES POTENTIALLY
AFFECTED BY THE SUPREME COURT'S
DETERMINATION IN THIS CASE
This matter having been brought before this Court by Robert
Czepiel, Jr., Supervising Deputy Attorney Gene~al, appearing for the
State of New Jersey, and Michael R. Hobbie, Esq., appearing on
behalf of the defendant, Eileen Cassidy, and Sharon A. Balsamo,
Esq., appearing on behalf of the New Jersey State Bar Association,
and Samuel Louis Sachs, Esq., appearing as amicus curiae, and John
Menzel, J.D., appearing as amicus curiae, and Matthew w. Reisig,
Esq., appearing as amicus curiae, on the State's Motion for a Stay
of all proceedings in other courts that raise issues potentially
affected by the Supreme Court's determination to be made in this
matter; and the Court having heard oral argument and for good cause.
shown;
It is on this 2nd day of November, 2017 ORDERED that, based
on the attached certification of Mr. Czepiel, the State's Motion
for a stay of proceedings in other courts that raise issues
potentially affected by the Supreme Court's ultimate
determination in this matter, i.e. a DWI prosecution in which a
BAC reading derived from an Alcotest device calibrated by
coordinator Marc Dennis, is hereby GRANTED.
It is FURTHER ORDERED that the stay of proceedings contained
in this Order shall not preclude other courts from ordering that
sentences for DWI convictions or sentences for driving while
suspended under N.J.S.A. 39:3-40(£)(2) and (3) or N.J.S.A. 2C:40-
26 in, or as a result of, adjudicated Dennis cases be stayed
pending the ultimate determination by the Supreme Court in this
matter;
It is FURTHER ORDERED that if a DWI conviction in a Dennis
case constitutes a predicate offense to enhance the gradation or
applicable punishment in a subsequent prosecution for another
charge, proceedings in the subsequent prosecution shall be
stayed, unless the defendant expressly waives the right to the
stay (and therefore the right to challenge his or her DWI
conviction in the Dennis case regardless of the determination
- 2 -
,.
ultimately made by the Supreme Court in this matter), and agrees
to allow the prosecution
- 3 -
"
. Lisa, P.J.A.D.
recall)
Prepared by the Court
STATE OF NEW JERSEY,
Plaintiff-Movant
v.
EILEEN CASSIDY,
Defendant-Respondent.
SUPREME COURT OF NEW JERSEY
M-244/245/246 September Term 2016
078390
Order Supplementing Order Granting Stay of Proceedings in Other
Courts that Raise Issues Potentially Affected by the Supreme
Court's Determination in this Case
This matter being opened on the court's own initiative and
being entered, after notice to all parties, as a supplement to
the November 2, 2017 order of this court staying certain
proceedings in other courts, for the purpose of effectively
identifying cases in which breath samples were provided on an
Alcotest device calibrated by New Jersey State Police
coordinator Marc Dennis, to which the November 2, 2017 stay
order applies,
It is on this 28th day of November, 2017, ORDERED AS
FOLLOWS:
1. In any proceeding in any court involving a prosecution,
conviction or sentence for a DWI offense for which the offense
date was between January 1, 2008 and September 30, 2016, it
shall be the affirmative obligation of the prosecutor in that
proceeding to determine whether or not the defendant provided a
breath sample on an Alcotest device that had been calibrated by
coordinator Marc Dennis, and to produce documentary evidence of
that determination to the defendant and the court;
2. In any proceeding in any court involving a prosecution
for an offense in which a prior DWI conviction constitutes a
predicate offense to enhance the gradation or applicable
punishment in that subsequent prosecution for another charge, or
involving a sentence emanating from such a case that has been
adjudicated, it shall be the affirmative obligation of the
prosecutor in that proceeding to determine whether or not the
defendant provided a breath sample on an Alcotest device that
had been calibrated by coordinator Marc Dennis in that prior DWI
case, and to produce documentary evidence of that determination
to the defendant and the court.
IT IS FURTHER ORDERED that the Attorney General shall
forthwith provide a copy of this order to all county and
municipal prosecutors.
Dated: November 28, 2017
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