New Jersey DWI Attorney John Menzel

What Was The New Jersey Police Sergeant Accused Of Doing?

Sergeant Marc Dennis was charged with false swearing and basically not performing the functions that were assigned to him, which is a shorthand description of his charges, but he received two charges: one for false swearing and one for record tampering. The accusation involves certifications that he signed concerning a function that the state police require him to perform, and that function is to check the calibration for breath-testing devices used in New Jersey on people charged with DWI. His duties involve checking the calibration of testing devices, and this includes making sure that each device is measuring temperature correctly. Temperature is a vital component in the calculation of blood alcohol content.

The device is supposed to heat and maintain a temperature of 34 degree Celsius, plus or minus 2 degrees. That temperature measurement has to be traced back to the national standard in Washington, DC. Besides the internal checks that are run by the Alcotest 7110 breath-testing device itself, the state police require that the breath test coordinators use a separate temperature-measuring device, a digital thermometer basically, that itself is traceable to the national standard. The way you trace measurements is by comparing them from one device to the other.

So the coordinator would use his traceable thermometer, which is currently manufactured by an organization called Control Company Incorporated. The Control Company, in its laboratory, compares the way that the thermometer measures temperature with its own internal standards, and those internal standards are, in turn, compared to those maintained by the government at the National Institute of Standards and Technology. What Sergeant Marc Dennis is accused of doing is certifying that he used that digital thermometer manufactured by the Control Company, but the state police are accusing him of not checking the calibration of the Alcotest, according to the standards set by New Jersey’s Office of Forensic Sciences.

Dennis is charged with false swearing because he swore to something that the state police are alleging he did not do, and he is also charged with tampering with records because that his signature gives the appearance that the calibration checking records are in order when, in fact, they are not. It undermines the basic scientific reliability of the breath-testing device because we cannot be certain about that intermediate step that was supposedly skipped. As a result, that renders the breath test unreliable.

What Does This Mean For Prior DWI Cases In The State Of New Jersey?

This really depends. The Attorney General believes it could potentially affect more than 20,000 cases. The Alcotest machine generates certain documents: one is called the calibration record. This record consists of other documents: a control test and a linearity test, These are all tests that make sure that the machine is measuring temperature and volume correctly and, basically, running according to specification. Each of these documents is given a unique sequential file number. Another function that is run by the Alcotest is a solution change document, which is a reference solution that is also run at the same time as any breath temperature measurement or blood alcohol content.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (732) 899-1899

Another function of the Alcotest is the actual breath test itself, which generates something called the alcohol influence report. Every time the machine runs a function, it generates a piece of paper that is given a unique sequential file number. The Attorney General has looked at all of the calibration records with Mark Dennis’ signature on them and traced those to the alcohol influence reports that relate back to the calibration record generated by Mr. Dennis. Dennis was a coordinator in the field for almost seven years, and the Attorney General is taking every alcohol influence report related to what Dennis did in terms of calibration and has come up with the number of 20,667.

Dennis checked the Alcotest machines in several counties in central New Jersey, including Monmouth, Ocean, Middlesex, Somerset and Union. When you look at that total number of 20,667, it doesn’t factor in how many of those cases actually involved a breath test result. In reviewing my own cases here in the office, I had about 80 cases that involved a breath test result, but of those 80 cases or so, we determined that only 12 may have been affected because I was actually able to either eliminate the breath test result or get the person acquitted on the other cases that Dennis was involved in.

That number, 20,667, is still going to be a significant number but nowhere near the magnitude of the number claimed by the state police. We also have to look back. We have a process in New Jersey called post-conviction relief. If a defendant wants to challenge the validity of his or her conviction, our court rules put some burden on them to do certain basic research. That basic research includes obtaining police reports and other documents, which we call discovery. Discovery requires them to get a transcript of the proceedings of their plea so we know word-for-word what was said between the judge, the prosecutor, the defense attorney and the defendant. With all that information, we can determine the basis on which the conviction came about.

If the conviction was based on observational evidence, dependent on the breath test results, then that person probably would not have a claim because the breath test results and Mark Dennis’ actions really would have nothing to do with the conviction. On the other hand, if it turns out that the sole basis for the finding of alcohol impairment was the breath test result, that person may very well have a claim and has to come forward with the evidence. When you bring an action for post-conviction relief, the burden is initially on the defendant to show there has been a miscarriage of justice, the plea was somehow obtained through fraud, or there were certain other required steps that were omitted. That burden of proof is by a preponderance of the evidence, more likely than not.

My feeling is that if a defendant can establish that their conviction was based on a breath test alone and they satisfy the requirements of discovery required by the rules, they have a viable claim because once we establish the claim for post-conviction relief, the burden will shift to the state to show that the claim is invalid. It’s going to be interesting to see what the state will do if they can’t bring in Mark Dennis to testify. He really would have little incentive to testify. Indeed, he could probably invoke his 5th Amendment right to remain silent in light of the allegations that the state is making against him. So we’ll see to what extent this problem really exists.

Ironically, while the state, on the one hand, says that potentially more than 20,000 cases could be affected, it also alleges that only two cases were actually affected, and in both of those cases the breath test results did not play a role in the finding of impairment. So it’s going to be interesting to see how the state intends to proceed from here.

For more information on Tampering With Evidence In NJ, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (888) 394-1394 today.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (732) 899-1899

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