Capitol Report

The Capitol Report is a weekly update about the NJSBA’s advocacy with government officials and the Judiciary. Read on for the latest installment.

September 25, 2023

Special Master Sides With Most of NJSBA’s Recommendations Regarding Alcotest Readings

Special Master Judge Robert Fall concluded sided with the New Jersey State Bar Association on a number of issues related to challenges of Alcohol Influence Reports (AIR) generated from machines calibrated by police Sgt. Marc Dennis. The NJSBA appeared as amicus in the matter of State v. Zingis, urging the Special Master to rule that AIRs generated from Dennis-calibrated machines are admissible in enhanced sentencing matters. Jeffrey Evan Gold, John Menzel and Michael V. Torso wrote the brief.

In a comprehensive report, Special Master Fall found that the State has the obligation to provide a defendant with information and documentation about whether a prior driving while intoxicated (DWI) conviction that is being used for enhanced sentencing did or did not involve a reading from a Dennis-calibrated machine.

“Given the severity of the consequences of being sentenced as a second or subsequent offender, based on a prior DWI conviction that may have been improperly entered due to the misfeasance of a public law enforcement officer, this court concludes the State has the obligation to provide a defendant, subjected to a possible enhanced sentence, information and documentation, prior to imposing any sentence, whether a prior DWI conviction did, or did not, involve an evidential [blood alcohol content] reading obtained from breath samples provided on an Alcotest Instrument calibrated by Sergeant Dennis,” said Special Master Fall.

The Special Master also agreed with the NJSBA’s recommendation to create an online repository of calibration records from all of the machines Sgt. Dennis calibrated. The repository could be accessed by municipal prosecutors and defense attorneys to obtain information regarding the underlying DWI conviction. The association approached Attorney General Matthew Platkin with this proposal in order to “increase transparency around the misconduct and ensure that access to justice is appropriately preserved in these matters.”

The online database will involve approximately 236,000 individuals who were presented an Alcotest calibrated during Sgt. Dennis’s tenure and a repository of his calibrations, which was created by the NJSBA and submitted as a joint exhibit with the Office of the Public Defender and will be verified by the State. No sentencing of a defendant where the State seeks imposition of an enhanced sentence will be permitted until this process has been completed, said Special Master Fall in his report.

Judge Fall diverged with the NJSBA in one aspect regarding those cases where the individual did not actually provide a breath sample. The NJSBA argued that these individuals should also be included as “Dennis” affected defendants, however Judge Fall concluded that such refusal could have been made evidential and fully contested during a trial on a refusal prosecution. But that an “Error Message” resulting in no BAC reading “has nothing to do with the fact that Sergeant Dennis calibrated a particular Alcotest Instrument, which is only relevant when an evidential BAC reading was produced.”

In 2016, criminal charges were brought against Sgt. Dennis for failing to correctly perform Alcotest calibration functions assigned to him. His subsequent conviction called into question over 20,000 tests produced in DWI stops where it was verified that the machines were calibrated by Sgt. Dennis. Those tests were challenged in State v. Cassidy, which resulted in direct mailings by the State regarding the outcomes of their DWI convictions in light of the finding that Sgt. Dennis’s calibrations were not properly calibrated. Cassidy focused on DWI convictions arising out of convictions based on a confirmed Dennis-calibrated machine. Zingis focuses on those convictions resulting in enhanced sentencing where the initial DWI may have been calibrated by Dennis, but prior to Dennis’s criminal conviction.

The matter will be scheduled for Supreme Court briefing and argument and the NJSBA continues to monitor this matter.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.