Thousands of DWI convictions in limbo after ‘substantial doubts’ about breath test results

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More than 13,000 motorists in New Jersey whom the state Supreme Court ruled were convicted of drunken driving with illegal evidence are still fighting for the chance to challenge their convictions in court.

More than two years after the court’s ruling, which tossed out breath test evidence from machines the justices found were not properly set up, these motorists’ driving records and insurance bills are still tainted by a likely false conviction.

Four retired judges were appointed last year to determine how cases affected by the high court’s ruling should be handled. Defense attorneys have moved to contest many of the tainted convictions, but the courts haven’t yet started hearing their challenges, attorneys said.

Progress in the case has stalled because of the coronavirus pandemic, officials said, leaving many in a prolonged legal limbo, having faced penalties for convictions that their attorneys believe are not legally viable and will eventually be overturned. 

Pictured here a closeup of the old Breathalyzer on the lft and the new Alcotest on the right.

Attorneys said many defendants have already completed their sentences for DWI convictions affected by the case, meaning they have had their driver’s licenses suspended, paid motor vehicle and court fines and had their car insurance rates raised. If they are able to successfully challenge their convictions, attorneys believe they will be eligible to get about $3,500 in fines and surcharges paid back.

“You have people that still have DWI convictions on their motor vehicle record who ultimately will not be convicted of DWI,” said Matthew Reisig, a Freehold-based defense attorney who specializes in DWI cases and was part of the team that argued the case before the Supreme Court. “Every day goes by that they still have that conviction on their motor vehicle record is a miscarriage of justice.” 

A stalled process

The convictions began unraveling in 2016 after State Police Sgt. Marc Dennis, a coordinator in the Alcohol Drug Testing Unit, was accused by the state Attorney General’s Office of skipping a crucial step in calibrating breath test machines used in three Monmouth County towns to measure the blood alcohol level of suspected drunken drivers. Dennis was criminally charged, throwing into doubt breath test results from all machines he tested during his tenure as a testing coordinator.

His case is still pending.

State officials initially identified more than 20,000 cases in five counties affected by the case, but that number has since been whittled down to about 13,600 who were found guilty, either by trial or plea. A large proportion of those cases — nearly 5,500 — are in Monmouth County, with more than 3,000 each in Middlesex and Union counties and smaller amounts in Somerset and Ocean counties.

The courts have been slow to sort out the “mess” that resulted from the charges against Dennis, Reisig said. Those involved in the case fear that many who may be able to clear their records won’t do so because of the amount of time that has passed since the start of the case.

Peter McAleer, a spokesman for the state judiciary, said municipal courts have been directed to forward all motions filed in cases directly affected by the court’s ruling to retired Appellate Division Judge Robert A. Fall by Feb. 12. Fall was appointed by the Supreme Court in 2019 to determine how to resolve the affected cases.Your stories live here.Fuel your hometown passion and plug into the stories that define it.Create Account

McAleer said court officials have developed a procedure for resolving those cases and information will soon be sent to defendants on how to contest their convictions. He said the mailing of the notices was delayed because “limited staff and resources were redirected” to moving municipal courts to a largely virtual set up during the pandemic.

“The process was not as expeditious as what we had planned before the onset of COVID-19, however plans are in place to move forward as quickly as possible,” McAleer said in a statement.

John Menzel, an Asbury Park-based DWI attorney, filed a motion in September asking the Supreme Court to order judges to begin addressing those cases.

Menzel wrote that he had already filed municipal court petitions challenging 14 DWI convictions based on the high court’s prior ruling.

“I frequently receive inquiries not only from my clients but also from attorneys and others about the status of the (case),” Menzel wrote to the court. “All I can tell them is, ‘I don’t know.’”

Menzel said one client, who was sentenced last year as a repeat DWI offender in Howell municipal court, had his license revoked for eight years. But one of his prior convictions, also out of Howell, stemmed from a breath test result that has now been tossed out.

If his conviction in that case is overturned, he will be eligible to drive again later this year, Menzel said. The attorney said he planned to file a petition for post-conviction relief on behalf of that client.

“The longer these PCR (post-conviction relief) petitions languish, the more likely injustice will continue,” Menzel wrote in his motion to the court.

‘Substantial doubts’

Dennis was charged in September 2016 with tampering with public records and falsifying records after authorities alleged that he falsely certified that he completed all steps required in calibrating the breath test machines, known as the Alcotest 7110, which are used by police during drunken driving stops.

A December 2018 indictment added three counts of official misconduct, alleging Dennis failed to properly calibrate the breath test machines and, after he was suspended, used his police identification card to falsely present himself as an active-duty officer to avoid traffic tickets. He was also accused of stealing the police ID card and charged with theft by unlawful taking, according to the indictment.

Dennis has pleaded not guilty to all charges and is awaiting trial.

Dennis’ defense attorney Kevin P. McCann disputed the allegations. He said Dennis always properly completed the breath test calibration process and said the state had unnecessarily “created a nightmare for themselves” by alleging he hadn’t. 

“Marc Dennis was doing this for years. He would have no reason not to do this test,” McCann said. “It’s crazy not to do it.”

McCann also challenged the accusations involving the traffic stops, saying Dennis presented a business card not an official State Police ID. He said it was similar to the widespread practice of residents presenting police union cards in hopes of avoiding traffic tickets.

One defendant, Eileen Cassidy of Spring Lake, who pleaded guilty in a 2016 DWI case, moved to challenge her conviction after hearing about the charges against Dennis. Her guilty plea had been based on a breath test result from a machine that had been calibrated by Dennis.

The state Attorney General’s Office argued that her conviction and other results from machines calibrated by Dennis shouldn’t be tossed out merely because of the charges against him. The state contended that the step Dennis was accused of skipping, which involved measuring the temperature of a chemical concoction meant to simulate alcohol on a person’s breath, wasn’t vital to ensuring the machines gave accurate readings.

A retired appellate judge, Joseph F. Lisa, tasked by the Supreme Court with examining the issue, disagreed. Lisa, in a 218-page report, concluded the missing step “raises substantial doubts about the scientific reliability of breath test results.”

The Supreme Court relied on Lisa’s findings when the justices, in State vs. Eileen Cassidy, ruled that results from all machines calibrated by Dennis could not be used as evidence in court.

‘Just not a priority’

But the court’s ruling did not lay out what would happen to thousands of cases that were now left without the breath test results central to most DWI convictions.

In January 2019, Fall, the retired appellate judge, was appointed to figure how to move forward. In August, three more judges were selected to join Fall and were given the authority to resolve the cases.

The appointments were designed to “provide greater consistency and efficiency, and to minimize conflicts and delays,” according to a Supreme Court order.

But attorneys involved in the case said the process has been anything but smooth.

“I am an attorney who is always regarded our Supreme Court as among the finest in the nation. I have done so repeatedly and publicly throughout my career,” Reisig said. “However, I have never understood anything our Supreme Court has done regarding State vs. Cassidy or the mess occasioned by Sgt. Dennis’ misdeeds as a breath test coordinator.”

Reisig said the courts should vacate all convictions in cases affected by the high court’s ruling and, if prosecutors wanted to continue the case, those defendants could then be retried in municipal court based on “observational evidence,” such as the person’s behavior, the odor of alcohol and their performance on field sobriety tests.

Fall held an informal meeting with attorneys involved in the case in March 2019, where he sketched out a proposed process whereby applications for post-conviction relief would be screened in county Superior Court. If approved, the convictions would be overturned and the case would either be dismissed, sent back to municipal court for a new trial or a plea deal could be struck, attorneys said.

But since the 2019 meeting, those attorneys said they have not been advised on how the courts plan to resolve the cases.

“There hasn’t been much talk on Cassidy cases in a year,” said Michael R. Hobbie, an Eatontown-based attorney, who represented Cassidy and was the lead attorney arguing the case before the Supreme Court. “It’s just not a priority right now.

Pandemic problems

The state Attorney General’s Office has sent notices to defendants affected by the case informing them they may be able to challenge their cases by filing petitions for post-conviction relief.

McAleer, the spokesman for the state judiciary, said a procedure to address cases affected by the Cassidy decision has been “finalized” but defendants have not yet been notified. Those defendants will shortly receive in the mail a standard form to file for post-conviction relief, a financial form to establish if they need a court-provided attorney and directions on how and where to submit the documentation, McAleer said.

He said Fall has “consulted regularly with all stakeholders” including prosecutors in the affected counties and representatives of the Attorney General’s Office, the New Jersey State Bar Association and the Office of the Public Defender.

The delays in the Cassidy case are another example of how the coronavirus pandemic has hampered the municipal court system, where DWI cases are typically handled. New Jersey’s more than 500 municipal courts were closed during the statewide shutdown last spring and have since operated primarily virtually, upending court routines and vastly increasing the backlog of cases in the system.

Hobbie, Cassidy’s attorney, said he understands how the pandemic has hamstrung the court system, but he said the delays have been frustrating for his clients waiting for the opportunity to clear their records.

“There was wrongdoing. The Supreme Court found that there was wrongdoing,” he said. “The state has been slow to remedy it.” https://www.app.com/story/news/investigations/2021/01/26/dwi-new-jersey-after-evidence-tossed-thousands-drivers-wait-clear-record/3926931001/

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