The attorney general’s attempt to relax rules for calibrating drunken driving testers is facing uncertain prospects after a special master’s report said the proposed revisions would compromise reliability.
After charging a state trooper with falsifying records for allegedly skipping a step when calibrating Alcotest devices, the state petitioned the Supreme Court to find that step was unnecessary. The step allegedly skipped was mandated by the Supreme Court in State v. Chun in 2003.
But on May 4, after a yearlong study, a special master in State v. Cassidy said the proposal to eliminate a check of the temperature of simulator solutions with a special thermometer would undermine the reliability of tests.
The Supreme Court will have the final say, but the 218-page report by retired Appellate Division Judge Joseph Lisa, the product of a month of hearings with six expert witnesses, is expected to carry a lot of weight.
“We’re hopeful that the Supreme Court adopts the recommendation of Judge Lisa. It’s a very well-reasoned report,” said Eatontown lawyer Michael Hobbie, who represents defendant Eileen Cassidy in the case.
The state charged state police Sgt. Marc Dennis with falsifying records in September 2016, accusing him of skipping a step in the mandatory calibration process when he checked Alcotest machines in police departments. It identified 20,667 people who provided evidentiary breath samples on machines calibrated by Dennis.
Meanwhile, Cassidy was charged with drunken driving in Spring Lake municipal court. Her charges were based on an Alcotest machine calibrated by Dennis. She pleaded guilty but later moved to vacate her plea after learning about the charges against Dennis.
Elie Honig, director of the state Division of Criminal Justice, anticipating other challenges, moved before the Supreme Court for direct certification of Cassidy’s case and appointment of a special master. The special master would address whether failure to use a National Institute of Standards and Technology-traceable thermometer undermined the scientific reliability of the Alcotest.
But Lisa said the state failed to prove that skipping the NIST thermometer step in the calibration process “does not undermine and call into question the good working order of the Alcotest instrument.” Skipping the thermometer step “removes from the process a substantial and essential safeguard, the magnitude of which reduces the reliability of the device to a level that is less than sufficiently scientifically reliable to allow its reports to be admitted into evidence,” he wrote.
Dennis’ charges came on the heels of another evidentiary scandal at the Division of Criminal Justice, where a lab technician at a state police laboratory in Little Falls, New Jersey, in December 2015 was accused of falsifying test results for suspected marijuana, stirring turmoil in thousands of criminal cases.
In the Cassidy case, representatives for the attorney general said that, even though it was seeking a general elimination of the requirement for thermometer calibration of simulator solutions, it would still carry out that step, said Jeffrey Gold, a Cherry Hill, New Jersey, defense lawyer who participated in the Cassidy case on behalf of the amicus curiae state bar association. He takes issue with the state’s effort to change the rules in light of Dennis’ misconduct.
“The fact that the state wanted this relief, to me, was nefarious. I didn’t think that was just at all,” Gold said.
While the state estimates more than 20,000 people were affected by Dennis’ actions, the actual impact might be far less, said Gold. While past defendants convicted of drunk driving might gain the right to reopen their cases in light of the improper procedures, not all will follow through, he said.
Peter Aseltine, a spokesman for the Division of Criminal Justice, said in an email, “we are reviewing the report and will be preparing to address this before the Supreme Court. We don’t have any further comment.”