For almost two years, cases affected by the conduct of Sgt. Marc Dennis have been stayed by the New Jersey Supreme Court. The stay was put in place after it was discovered that Sgt. Dennis had not been following proper procedure with the calibration of the Alcotest machines in Middlesex, Monmouth, Ocean, Somerset, and Union Counties.
Shortly thereafter, Judge Joseph F. Lisa, J.A.D. was appointed as a Special Master to hear testimony and arguments from both the State and Defense Bar to determine the accuracy and admissibility of results of the Alcotest machine when the calibration was not done in accordance with the requirements of State v. Chun. In an extensive opinion, Judge Lisa determined that the State could not sustain their burden of proof as to the scientific reliability of the Alcotest machine without the NIST-traceable temperature check being performed on the simulator solutions.
On November 13, 2018, the New Jersey Supreme Court released an unanimous decision written by Justice Timpone, which accepted the findings of the Special Master. They accepted his credibility findings as to the experts as well as his legal conclusions. The Supreme Court held that “breath test results produced by Alcotest machines not calibrated used a NIST-traceable thermometer are inadmissible.” The State’s own witness testified that because of potential laboratory bias in initial calibration, the NIST-traceable thermometer is essential. In fact, the Justice Timpone found this requirement so important that he ordered that going forward, the State is required to manually record the NIST-traceable readings.
By order of the New Jersey Supreme Court, the State is required to notify all affected Defendants of the Supreme Court’s decision. They have also relaxed the five-year time bar due to the State’s delay in notifying affected Defendants.
But, how does this affect your DWI conviction? Sgt. Dennis was calibrating Alcotest machines between 2008 and 2016. If you received a notice from the State or had a DWI in Middlesex, Monmouth, Ocean, Somerset, and Union Counties during that time period you may want to consider re-opening your DWI. A re-opening of a DWI could result in the dismissal or downgrade of the charges. The NJ Attorney General’s Office has not released a statement or guidelines on how they are going to handle re-openers, but it will start in the Municipal or Superior Court where your charge was originally heard. It also may affect criminal charges or convictions for 2C:40-26 Driving while Suspended for a DWI, a fourth degree crime, if one or more the underlying DWIs were based on a Sgt. Dennis calibrated Alcotest machine.
If you would like to make an appointment to come meet with us with respect to your case, please call our office at (732) 741-4448. We would ask that you bring any discovery that you may have with respect to your case, including police reports and video and/or audio recordings.