What Counties Specifically May Be Affected?
The affected counties include Monmouth, Ocean, Middlesex, Somerset and Union.
What Steps Should Someone Take If They Believe That Their DWI Case Has Been Affected?
The first thing they should do is contact their attorney. Frankly, I think their attorney probably should contact them because they have to make a decision about whether it’s worth making that post-conviction relief application. It’s not done for free. A lot of people probably may opt not to do it, given the duration and the time when these cases occurred. I would say that most of the people who might be touched by this have probably already served their sentence, but it’s still not a bad idea to try to get the conviction off your record. In New Jersey, a DWI is a traffic offense, not a criminal offense, but nonetheless, a lot of other jurisdictions look at it like a criminal offense.
Indeed, Canada will not even let you into their country because they view DWI as a criminal offense. The other problem with a DWI in New Jersey is that because it’s not criminal, it cannot be expunged. It’s on a person’s driving record forever and can have a significant impact down the road if, God forbid, something else happens, like another DWI accusation. There may be incentive for those people to contact their attorney or hire another one to do the investigation required to initiate the post-conviction relief process. Incidentally, the mutual time period for filing post-conviction relief is within five years of the date of the disposition, whether it’s by plea or a guilty finding after trial. However, there is an exception to that.
One is based on good cause, which might apply to someone whose allegations surfaced in late September of this year. The other exception is fraud. Essentially, it sounds like the state is saying that Marc Dennis fraudulently completed the various calibration records, and that may get people, even with very old DUI convictions, a window in which to file the post-conviction relief that might not otherwise be available to them. That’s why people should look into it.
Additional Information Regarding The Evidence Tampering Scenario In New Jersey
There is something interesting that occurred here. This case arose out of a Municipal court matter: The State vs. Cassidy. In this case, Eileen Cassidy had pled guilty to a DUI and then days later had discovered the existence of this state police scandal and consequently moved to reopen her case. Cassidy was a 3rd offender, meaning she was facing a six-month jail term and a 10-year loss of driving privileges. The Attorney General first asked the Director of New Jersey’s Administrative Office of the Courts to notify anyone, who would be affected by this, and to appoint a special master to make fact-findings about the situation.
Essentially, what the Attorney General was going to try to do was have the court disregard and remove the requirement of mistraceability by basically claiming that the step involving the use of the separate thermometer, traceable to the national standard, was simply another quality assurance measure. That application, made first with the Administrative Office of the Courts, was denied because it was made to an administrator and not the court as a whole. In fact, the administrator denied the request and told the Attorney General to file a formal motion with the court. The Attorney General did that, and the attorney for Ms. Cassidy opposed that motion because all he wanted was to get her case reopened so that he could get rid of her conviction and get her a better result.
After that, the state Supreme Court decided to invite certain attorneys to participate, as friends of the court, by providing input into the situation, and one of those attorneys was me. I submitted my brief explaining what mistraceability is and its influence on the standards of technology. I actually suggested to the court that they really should not appoint a special master because there was no need for fact-finding about the necessity for mistraceability. This is because in a case that I served on for the defense called State vs. Chung, that requirement was already litigated. In fact, it was the state that introduced the requirement and produced a number of witnesses to testify to the necessity of the requirement.
Now that one of their coordinators failed to live up to that requirement, it seems that the Attorney General would rather eliminate that requirement to the detriment of anyone who is accused of DWI because it has become inconvenient for the state police based on the alleged wrongdoing of one of their own. The state Supreme Court has yet to make a decision about that. The last briefs were actually filed yesterday, and we are waiting to see what the court does. I took the position that the request for a special master be denied and that all attorneys and defendants, potentially affected by this kind of an issue, should be notified so that they have, at least, the opportunity to investigate and perhaps pursue post-conviction relief on a case-by-case basis.
The reason for a case-by-case basis is that in some instances, the conviction was not based on a breath test result, or the breath test result was already excluded, and it is simply not necessary for them to apply for post-conviction relief or would probably not help them to apply for such relief. That’s where it stands today.
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