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 state should turn over certifications in connection with Alcotest machine testing and calibration when seeking an enhanced sentence based on a prior offense, the New Jersey State Bar Association (NJSBA) said in its amicus curiae brief to the New Jersey Supreme Court. The Association submitted its brief in State v. Zingis arguing that the discovery should be produced automatically and electronically accessible. NJSBA members Jeffrey Evan Gold and John Menzel wrote the brief.
“Just as previously convicted defendants are entitled to relief, so are defendants facing sentence enhancement because of prior DWI convictions derived from the tainted evidence,” said the NJSBA.
Thomas Zingis was charged with, among other things, driving under the influence while riding his motorcycle in 2018. The state sought to have Zingis sentenced as a second offense DWI. Zingis objected, arguing that the state failed to prove beyond a reasonable doubt that his first offense, which took place between 2008 and 2016, was not affected by the actions of New Jersey State Trooper Sergeant Marc Dennis in not properly following the required calibration protocol for certain Alcotest machines, resulting in unreliable blood alcohol readings.
Zingis was charged as a second offender, but the sentence was stayed pending appeal. The trial court upheld both the sentence and the conviction, which was appealed to the Appellate Division. The appeals court upheld the conviction, but remanded the matter to resentence Zingis as a first-time offender. The court held the state had a duty to prove Dennis’ non-involvement beyond a reasonable doubt, which was not met.
The NJSBA urges the Court to require the state to ensure the integrity of DWI sentences by producing calibration records demonstrating that prior DWI convictions obtained during Dennis’ tenure as the breath test coordinator were not tainted.
“The matter is not about rewarding defendants who have slept on their rights,” said the NJSBA. “It is about ensuring the court’s sentence that carries significant consequences is fair and just based on valid prior convictions. This can only be done by close examination of the evidence supporting a prior conviction.”
The mechanics of such mandate is simple, says the NJSBA, as e-Courts relies upon PDFs that are electronically available for near-immediate review. “An online repository of relevant printed calibration records would be no more burdensome for municipal prosecutors than running a driver’s abstract online, which is done in every case.”
Oral argument has not yet been scheduled.