Impact Of Supreme Court Ruling On DWI Cases In New Jersey
State vs. Cassidy is a case that arises as a result of allegations against a New Jersey state trooper named Marc Dennis. Marc Dennis is a breath test coordinator instructor. In that role, he has the obligation to properly calibrate breath testing instruments in New Jersey, so that they’re able to render accurate and reliable results. Trooper Dennis was charged with failing to perform a critical part of that calibration, namely by using something called a NIST traceable thermometer. NIST stands for National Institute for Standards and Technology, the federal agency responsible for maintaining the national standards for temperature and other measurements for the United States of America. By failing to use the NIST traceable thermometer during the calibration process, all breath test results obtained using instruments that Trooper Dennis calibrated were called into question.
Trooper Dennis has been indicted for certain crimes and the criminal case against him remains pending. In the meantime, the New Jersey Attorney General moved to intervene in the case of State v. Eileen Cassidy, who was charged with a third offense DWI in Monmouth County. She plead guilty and was sentenced to six months in jail. A short time after she was incarcerated, Trooper Dennis was indicted, and her attorney moved to vacate her conviction and reopen the case for a new trial. That motion was granted, and Cassidy was released from jail. The state’s motion to intervene was granted by the New Jersey Supreme Court.
The Supreme Court appointed a judge to sit as a special master. That judge was Joseph F. Lisa in the Appellate Division. Special masters conduct hearings, much like trials, for the Supreme Court because the Supreme Court itself is not set up to have these kinds of hearings. Judge Lisa conducted such a hearing, taking testimony from several expert witnesses and receiving hundreds of pages of exhibits to deal with the question of whether Trooper Dennis’ alleged failure using this traceable thermometer rendered breath test results unreliable. Judge Lisa found that particular step was absolutely necessary in order to have scientifically reliable breath test results. The Supreme Court reviewed Judge Lisa’s report and adopted his findings in their entirety. The court also said that those people who were convicted as a result of these unreliable breath test results would be entitled to seek something called post-conviction relief [“PCR”].
A PCR proceeding is an extraordinary proceeding in which defendants ask the court to vacate their convictions due to manifest injustice. Courts should find the use of tainted breath test results in support of a conviction to constitute a manifest injustice. A PCR petition is a sworn document from the defendants setting forth the reasons why they are entitled to relief. Defendants have to do a lot of homework before they can make such a petition. They have to get copies of the court’s records concerning the convictions and obtain either the transcripts of all proceedings before the court or a letter from the court administrator saying that no transcripts are available. Once this petition is filed, trial courts decide whether the petition is granted or denied or whether more information is required by way of having a hearing.
Ordinarily, PCR petitions must be brought within five years of the date of conviction, but because much of the alleged malfeasance by Trooper Dennis dates back to between January 1, 2008, and September 1, 2016, many of those convictions are more than five years old. As a result, the Supreme Court has specifically held that the five year period of limitations that normally applies to PCR petitions would be relaxed in those cases involving the tainted breath test results. The State was also ordered to notify all affected defendants by letter so that they would have the opportunity to seek relief by hiring an attorney and going through the PCR process required by New Jersey’s court rules. We are now just beginning to address the many thousands of convictions potentially affected by these tainted breath test results.
The State originally estimated that the number of affected cases was 20,667, although that number probably overstates the actual number of people affected because many of the people whose cases were affected by the tainted breath test results were found not guilty or their charges were resolved by a plea to something other than DWI. To address the scope of PCR applications potentially necessitated by State v. Cassidy, the Supreme Court appointed a second special master, the Hon. Robert A. Fall, who determined that the actual number of affected cases is 14,035, including those previously adjudicated and currently pending. Also, because many of these people will have completed their sentences and dealt with all of the consequences arising from their convictions, they may not want to go to the expense of having their convictions vacated. Very often, PCR only becomes an imperative if there is a later DWI offense to reduce their sentencing exposure on their new and pending case. However, because expungement is not available for DWI convictions, the only way to get a DWI conviction removed from the driving record is to reopen the case, get it returned to the court’s trial calendar, and get a dismissal or not guilty verdict and return of fine and surcharge payments.
My involvement in State v. Cassidy was as a participating attorney, invited by the Supreme Court as one of the principal defense attorneys in a case called State vs. Chun, where the Supreme Court validated the Alcotest 7110 as a scientifically reliable breath testing instrument in New Jersey. The State was represented by the Attorney General. The defendant was represented by an attorney Michael Hobbie. The New Jersey State Bar Association was invited as amicus curiae as was the Association of Criminal Defense Lawyers. However, only the state bar decided to appear as amicus. In addition to me, the court invited the other principal defense attorneys from State v. Chun–Samuel Sachs, Evan Levow, and Matthew Reisig, and myself. Of those attorneys, Sachs, Reisig, and I actively participated in the hearings before Judge Lisa and Reisig and I participated in the hearings before Judge Fall in State v. Cassidy.
As a participating attorney, I am intimately familiar with what went on in the special master proceedings, the oral arguments before the Supreme Court, and the reasons for which people should apply for PCR. If you believe you have had a case that relied, even in part, on breath test results tainted by Trooper Dennis’ alleged malfeasance, give me a call. With previously adjudicated cases in Monmouth (5,467), Middlesex (3,748), Union (3,389), Somerset (731), Ocean (190), Essex (51), Mercer (27), Morris (3), Burlington (1), and Hunterdon (1) Counties, according to Judge Fall.
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