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.

‘State v. Cassidy’ watch: Oral arguments to address special master’s findings scheduled

The New Jersey Supreme Court will hear oral arguments in September on the issue of whether the special master’s findings and conclusion that the failure to properly test and calibrate an Alcotest machine undermined the scientific reliability of breath tests subsequently performed on the machine. The New Jersey State Bar Association (NJSBA) submitted an amicus curiae brief recommending the state take corrective action, that the matters be handled routinely by a municipal court judge sitting in the affected municipality and that the state proactively notify defendants affected by the faulty Alcotest administration. The brief on behalf of the NJSBA was written by Arnold N. Fishman, Jeffrey E. Gold and Miles S. Winder III.

Special Master Joseph F. Lisa issued a nearly 200-page report in the matter of State v. Cassidy, Docket No. 078390, after significant briefing and argument that included expert reports, transcripts and testimony from witnesses that would determine the fate of approximately 21,000 tests performed on the failed Alcotest instruments. The underlying matter of Cassidy involved a state police sergeant who was charged with failing to properly calibrate Alcotest instruments by not testing the simulator solutions with a National Institute of Standards and Technology (NIST)-traceable thermometer before calibrating the machine. The false certification on the part of the police sergeant that he had properly calibrated the Alcotest instruments “called into question” the results of those tests that were ultimately used as evidential breath samples.

“[I] conclude that failure to perform the NIST-traceable step in the calibration process clearly calls into question the subsequent validity of breath test results derived from that device,” noted Judge Lisa in his report. “The evidence raises substantial doubts about the scientific reliability of breath test results produced by Alcotest devices calibrated without the use of a NIST-traceable thermometer.”

The parties and participating attorneys were invited to serve and file briefs on Judge Lisa’s report, which is scheduled for oral argument during the Supreme Court’s first argument session on Sept. 12-13. The NJSBA, which was invited to participate in the Cassidy matter by virtue of its involvement in State v. Chun regarding the scientific reliability of Alcotest machines, supports the special master’s findings.

In supporting the special master’s conclusions, the NJSBA further urged the Supreme Court to take affirmative steps to ensure protections for those affected and for all New Jersey citizens in the future. Specifically, the NJSBA urged the Court to adopt the special master’s report to require continued use of the NIST-traceable thermometer in Alcotest recalibrations; continue the special master’s order to require prosecutors to provide discovery in pending cases for prior driving while intoxicated (DWI) matters to assure they are not tainted; require constitutionally significant notice to all potential defendants affected by this matter; and require a procedure to manually record the readings of the NIST-traceable thermometer used in calibrating the Alcotest machines. With respect to this last recommendation, the association also urged the Court to consider providing the readings in routine discovery to defense, with the further right of defense, upon specific additional request, to inspect any reading recorded in the memory of the NIST thermometer.

The NJSBA will participate in oral arguments in September and continues to monitor this matter moving forward.