Special Master Judge Robert Fall agreed with the New Jersey State Bar Association that the use of an online index of affected individuals and repository of Alcotest calibrations is “the best available method of determining whether an individual was requested to provide breath samples on an Alcotest Instrument calibrated by [former New Jersey State Police] Sergeant [Marc] Dennis.” The Special Master issued a report in State v. Zingis addressing a number of issues related to the obligation of prosecutors to provide information about potentially inadmissible Alcotest breath sample results in prior DUI convictions sought to be used to justify enhanced sentencing on a current DUI. The NJSBA appeared as amicus in the matter, urging the Special Master to conclude that litigants should be entitled to calibration records from certain prior convictions to determine if they were obtained from machines that had been miscalibrated by Dennis and potentially entitled to post conviction relief. Jeffrey Evan Gold, John Menzel and Michael V. Torso wrote the brief and participated in the Special Master hearing.
In a comprehensive report, Judge Fall, who is retired and serving on recall, found that the state has the obligation to provide a defendant with information and documentation about whether a prior driving while intoxicated (DWI) conviction that is being used for enhanced sentencing involved a reading from a Dennis-calibrated machine.
“Given the severity of the consequences of being sentenced as a second or subsequent offender, based on a prior DWI conviction that may have been improperly entered due to the misfeasance of a public law enforcement officer, this court concludes the State has the obligation to provide a defendant, subjected to a possible enhanced sentence, information and documentation, prior to imposing any sentence, whether a prior DWI conviction did, or did not, involve an evidential [blood alcohol content] reading obtained from breath samples provided on an Alcotest Instrument calibrated by Sergeant Dennis,” said Judge Fall.
The Special Master also agreed with the NJSBA recommendation that the information can be provided using an online repository of calibration records from all of the machines Dennis calibrated. The repository could be accessed by municipal prosecutors and defense attorneys to obtain information regarding the underlying DWI conviction.
The online database, subject to verification by the state, would include an index of approximately 236,000 individuals who were tested on an Alcotest machine calibrated during Dennis’ tenure and a repository of his calibrations. Access to the index of individuals would be subject to a protective order. A sample index and repository was created by the NJSBA and submitted to the Special Master as a joint exhibit with the Office of the Public Defender. Judge Fall recommended that no sentencing of a defendant where the state seeks imposition of an enhanced sentence be permitted until the online database is consulted.
Judge Fall diverged with the NJSBA in one aspect regarding those cases where the individual did not actually provide a breath sample. The NJSBA argued that these individuals should also be included as “Dennis” affected defendants; however Judge Fall concluded that without an Alcotest reading, there was no admissible evidence in dispute. The Special Master surmised that any test result indicating the subject refused to be tested could have been made evidential and fully contested during a trial on a refusal prosecution. Judge Fall further concluded that an “Error Message” resulting in no blood alcohol content (BAC) reading “has nothing to do with the fact that Sergeant Dennis calibrated a particular Alcotest Instrument, which is only relevant when an evidential BAC reading was produced.”
In 2018, the State Supreme Court concluded that over 20,000 DUI convictions were subject to review as a result of Dennis’ failure to correctly perform Alcotest calibration functions assigned to him. The Court’s decision in State v. Cassidy resulted in direct mailings by the state notifying affected defendants of their rights. The reliability of the Cassidy notices are at issue in Zingis, where the Special Master hearings revealed that approximately 20% of the notices were undeliverable and as many as 7,000 potentially affected defendants were not included in the mailing.
The matter will be scheduled for Supreme Court briefing and argument and the NJSBA continues to monitor this matter.
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.