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Police Misconduct Threatens Over 20,000 New Jersey Drunk Driving Convictions

by Derek Gilna

The New Jersey Supreme Court has issued a report and order that could result in the invalidation of at least 20,667 drunk driving convictions in the state, after a state police officer was charged with criminal misconduct that cast serious doubt on the accuracy of blood-alcohol testing performed in those cases.

Sergeant Marc Dennis was charged in 2016 with falsifying testing results during the calibration of three Alcotest devices used to determine whether blood-alcohol levels exceed the legal limit of .08.

“This report deals with the scientific reliability of breath test readings used for evidential purposes in DWI cases … such reading (are) admissible in evidence only if ... the breath testing device which produced the reading was in good working order,” the Court said.

Unfortunately, the Court said, that reliability was compromised by the misconduct of the state police officer responsible for certifying the accuracy of the testing instruments.

The 218-page report found that by failing to carry out a legally required temperature check while recalibrating the three Alcotest devices, Dennis skipped a critical step in guaranteeing the accuracy of the process. Witnesses testified at his criminal trial that despite skipping that step he falsely certified that he had.

State authorities indicate that thousands of criminal cases in Middlesex, Monmouth, Ocean, Somerset, and Union counties between 2008 and 2016 are affected and subject to legal challenge. Many cases have already been concluded, but some are still pending. However, only one case, that of Eileen Cassidy, who brought the original case that was at issue in the Supreme Court, was dismissed.

According to her attorney, Michael Hobbie, “With respect to the other 20,667 (individuals), their cases weren’t vacated....They’re just going to get notified that the breath test in their case has been deemed inadmissible and they should seek whatever remedy is available to them.” Although prosecutors have already notified many of those affected, they are now also required to advise anyone affected by the breath tests in question that the results of those tests are now invalid.

In New Jersey, a breathalyzer reading is an important part of drunk driving cases, but one can still be convicted without it, based upon police testimony that establishes impairment. Even if the breath tests are invalidated, you could be subject to retrial, Hobbie said. “If they decide to prosecute it, they’ll have to prove it with observations, officer testimony and field sobriety testing.”

That won’t be an easy process for prosecutors, according to Arnold Fishman, one of the attorneys who represented the New Jersey State Bar Association in the Supreme Court case, “When a person comes before the court and the state seeks to sentence that person as someone other than a first-time offender, the state is going to have to prove that his prior conviction was not a Cassidy (type) case.”

The normal barrier to bringing close cases back into court after the time to do so has expired has been waived by the high court, but the precise procedures for court challenges to individual cases has still not been finalized.  


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