DWI test records obtained during a period when certain Alcotest machines were improperly calibrated must now be publicly available for defendants to use in determining if a prior DWI conviction was potentially tainted by testing improperly certified by then-New Jersey State Police Sgt. Marc Dennis, said the Supreme Court in a unanimous decision.
Pursuant to the Court’s decision in State v. Zingis, Docket No. A-66-21, defendants are also entitled to specific discovery when facing an enhanced sentencing due to a subsequent driving under the influence (DUI) charge where the first charge involved an improperly calibrated machine. The decision largely mirrors the recommendations of the New Jersey State Bar Association, which appeared as amicus curiae. NJSBA member Jeffrey Evan Gold wrote the most recent brief and argued on behalf of the Association. NJSBA members John Menzel and Michael V. Troso participated in the special adjudicator hearings, along with Gold, on behalf of the organization.
In its decision, the Court spelled out a process for the implementation of a special adjudicator’s findings and legal conclusions relative to subsequent DUI convictions where the original conviction was based on potentially tainted Alcotest results. In requiring the posting of information on the state’s website and compelling discovery relative to the original testing, the Court held that the NJSBA-suggested mechanism for the production of information about potentially tainted prior convictions was appropriate in such matters and outlined the procedure parties must follow moving forward.
“Today’s decision is a huge victory for transparency and levels the playing field for all in DUI matters,” NJSBA President William H. Mergner, Jr. said. “Up until now, defendants and their counsel had no reliable means to determine whether a prior DUI conviction was tainted by a miscalibrated Alcotest machine and potentially subject to being vacated through post-conviction relief proceedings.”
“The Court’s decision aligns with the NJSBA’s extensive advocacy in the case, making clear that information on prior DUI convictions premised on potentially tainted Alcotest readings is required to be publicly available, and that prosecutors must provide detailed information at the beginning of every DUI case to ensure all parties are on the same playing field from the start,” Mergner said.
This matter revisited the decision in State v. Cassidy, 235 N.J. 482 (2018), where the Court held that the certification of calibration checks of certain Alcotest machines done by Dennis were improper. Following a lengthy special adjudicator hearing, the Court held that the calibrations done by Dennis were improper and ordered notifications to all affected defendants of its decision that the results produced by Alcotest machines calibrated improperly are inadmissible. This case called into question over 20,000 Alcotest results.
Thomas Zingis was facing a second DUI charge in 2018, having been convicted of a prior DUI in 2012. As a result of the prior conviction, Zingis faced an enhanced sentence. Zingis challenged the enhanced sentence following the Cassidy decision because his initial DUI offense occurred during the period of the potentially tainted Dennis calibrations. The Appellate Division vacated the enhanced sentence finding that the state failed to prove beyond a reasonable doubt that Zingis’ 2012 DUI conviction was not based on an inadmissible test.
A special adjudicator hearing was ordered by the Supreme Court to determine which counties were affected by Dennis’ conduct and what notification was provided to those defendants. The Court’s decision here resolves two outstanding questions that the parties disagreed on. One was the availability of Exhibit S-152, a 180-page Excel spreadsheet setting forth all of the redacted subject test records obtained during the identified period of time Dennis was actively certifying Alcotest calibrations. The other was the proper procedure for challenging a prior Dennis-affected DUI conviction when facing enhanced sentencing on a subsequent DUI.
The Court held that Exhibit S-152, in a redacted form, must be publicly released on the state’s website, where it will be accessible by defendants and their counsel. It also held that during the initial conference for a DUI matter, a court must inquire whether the pending matter represents a first or subsequent DUI charge and determine if the prior offense occurred between Nov. 5, 2008, and April 2016. If so, the court must schedule a discovery conference to allow the state to provide the defendant and counsel, as well as the court, discovery that includes the summons number from the earlier offense to search Exhibit S-152.
This decision resolves a long-standing concern of the NJSBA regarding transparency relative to the notices required by the Cassidy decision and the production of information related to Dennis-calibrated machines. The state challenged the underlying Appellate Division decision to vacate the enhanced sentencing because Zingis’ name did not appear on the Attorney General’s list of Dennis-affected defendants compiled following the Cassidy case, nor was Camden County – where Zingis’ initial DUI occurred – was not implicated by the Cassidy decision.
However, the Appellate Division held that the state failed to prove beyond a reasonable doubt that Zingis’ conviction was not based on an inadmissible Alcotest result and called into question the compilation of the Attorney General’s list of notifications following Cassidy. The Court also questioned the lack of support for notification of those defendants following Cassidy. Instead the Appellate Division called for a more robust record of this information.
The NJSBA suggested the public availability of the subject test records contained in S-152 combined with the Dennis calibration records would resolve many of the questions regarding such challenges. The Court’s decision reflects its agreement and establishes the “robust record” called for by the Appellate Division for all matters going forward.