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. To learn more, visit njsba.com.
The New Jersey State Bar Association is participating as amicus curiae arguing that a prosecutor has an obligation to provide information with regard to prior convictions when seeking an enhanced sentence in a DWI case. State v. Zingis distinguishes this issue from a prior case, State v. Cassidy, in which the focus concerned the admission of evidence in a pending DWI prosecution to assess the defendant’s guilt. Jeffrey Evan Gold, John Menzel and Michael V. Troso submitted Proposed Findings of Fact and Conclusions of Law to the special master considering the issues in the matter, Judge Robert A. Fall.
Former State Police Sgt. Marc Dennis was found to have incorrectly performed Alcotest calibration functions assigned to him, calling into question over 20,000 tests produced in driving while intoxicated (DWI) stops. Specifically, Dennis failed to use a thermometer that produces temperature measurements traceable to the standards set by the National Institute of Standards and Technology relative to the calibration of the Alcotest devices.
The question in State v. Zingis centers around the discovery and burdens of proof on the state regarding breath tests conducted by Dennis in enhanced sentencing considerations by the Court.
“The NJSBA submits that a defendant facing an enhanced sentence is entitled to know if Sgt. Dennis calibrated any Alcotest in their case, and that any Alcohol Influence Report (AIR) produced in that prior case is possibly subject to challenge,” the NJSBA said in its brief. It further argued that the Court should find that an AIR calibrated by Dennis may be sufficient grounds and properly considered in filing a Post Conviction Relief petition, therefore putting an obligation on the state to provide any relevant AIRs calibrated by Dennis.
This is not the first matter that considered the tainted tests emanating from Dennis’ actions. In State v. Cassidy, the Supreme Court held that breath test results from Alcotest machines not calibrated using the thermometer were inadmissible in a DWI prosecution.
In Zingis, the question focuses on what is required to show that a prior conviction being used to enhance a DWI sentence was not a result of a Dennis-tainted Alcotest machine. The NJSBA, together with the state Office of the Public Defender, jointly submitted an exhibit in the Special Master hearing that would create a searchable index of calibration records signed by Dennis during the time period when his malfeasance occurred.
Zingis continues to be considered by the special master, and the NJSBA continues to monitor the matter.