What Was NJ Sergeant Marc Dennis Accused of Doing?
New Jersey State Police [“NJSP”] Sergeant Marc Dennis was charged with false swearing and failing to correctly perform Alcotest calibration functions that were assigned to him. The accusation involves certifications that he signed concerning how he calibrated breath-testing devices used in New Jersey on people charged with DWI. His duties involved checking the calibration of these testing devices, including that each device was measuring temperature correctly.
Temperature is a vital component in the calculation of blood alcohol content using breath. The Alcotest instrument is supposed to heat and maintain a temperature of 34 degree Celsius, plus or minus 2 degrees. That temperature measurement must be traceable back to the national standard maintained by the National Institute for Standards and Technology [“NIST”] in Washington, DC. Besides the internal checks run by the Alcotest 7110 breath-testing device itself, the state police require that breath test coordinators like Dennis use a separate temperature-measuring device, a digital thermometer, that is capable of making measurements traceable to the national standard by comparing those measurements from one device to the other.
Coordinator currently use traceable thermometers manufactured by an organization called Control Company, Inc. In its laboratory, Control Company compares the way thermometers used by NJSP coordinators measure temperature compared with its own internal standards. Those internal standards are, in turn, compared to those maintained by the government at NIST. The New Jersey Attorney General accuses Sergeant Dennis of false swearing, alleging that he certified Alcotest instruments as in proper working conditions without using the Control Company digital thermometer, thus violating standards set by New Jersey’s Office of Forensic Sciences [“OFS”] and making it impossible to establish the traceability of temperature measurements. He is also charged with tampering with records because his signature on the calibration certificates gave the appearance that the calibration checking records were in order when, in fact, they were not. Because these allegations undermined the scientific reliability of the breath-testing devices he was charged with certifying, the breath test results they rendered were unreliable.
What Does This Mean For Prior DWI Cases In The State Of New Jersey?
The Attorney General initially estimated that more than 20,000 cases were affected. The New Jersey Supreme Court appointed a special master to determine the actual extent of the issue and to devise procedures by which defendants whose convictions were potentially affected by the invalid breath test results might seek redress. Currently, the special master estimates that more than 14,000 cases are actually affected.
The Alcotest instrument generates certain documents: a Calibration Record, which includes documents memorializing the results of a control test and a linearity test, These tests are intended to assure that the instrument measures temperature and sample volume correctly and is running according to specifications. Each of these documents is given a unique sequential file number so that these functions can be traced back to each subject’s breath test. Another function that is run by the Alcotest is a solution change document, which is a reference solution run at the same time a subject’s breath temperature measurement.
Another function of the Alcotest is the actual breath test itself, which generates something called an Alcohol Influence Report [“AIR”]. 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 supposedly looked at the calibration records with Sgt. Dennis’ signature on them and traced the AIRs back to the calibration records generated by Sgt. Dennis. Dennis was a coordinator in the field for almost seven years, working primarily in Monmouth Middlesex, Union, Somerset, and Ocean Counties.
In New Jersey, the process by which to challenge prior convictions is called post-conviction relief [“PCR”]. 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, including obtaining police reports and other documents, which we call discovery. Those defendants must also get a transcript of the proceedings of their plea for the word-for-word record of what was said between the judge, prosecutor, defense attorney and defendant. If no transcript is available, the defendant applying for PCR must get a letter from the court administrator that says so. With all that information, we can determine the basis on which the conviction came about.
Even if the conviction was based on observational evidence independent on the breath test results, a person applying for PCR may still have a claim, because the existence of a potentially admissible breath test result could have affected the decision whether to plead guilty or go to trial. This is because, without a breath test result, penalty exposure is practically the same if one pleads guilty or is found guilty after trial. In other words, if these defendants had known there were no valid breath test results, they would have fought for acquittal with a trial rather than surrendered with a guilty plea.
When a person brings a PCR, the burden on the defendant is to show there has been a miscarriage of justice, that the plea was somehow obtained through fraud, or that there were certain other required steps that were omitted. That burden of proof is by a preponderance of the evidence, more likely than not.
If a defendant can establish that his or her conviction was based on an invalid breath test and they satisfy the requirements of discovery required by the rules, they have a viable claim for PCR. Once that claim is established, the burden shifts to the State to show that the claim is invalid. It’s going to be interesting to see what the State will do, since they can’t bring Sgt. Dennis to testify. He has little incentive to do so and would likely invoke his Fifth Amendment right to remain silent in light of the allegations that the State is making against him.
Ironically, while the state, on the one hand, initially said that more than 20,000 cases could be affected, it also alleged 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. It’s going to be interesting to see how the state intends to proceed from here.