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More Than 20,000 DWI Cases Up In The Air After Officer Accused Of Records Tampering

TRENTON – More than 20,000 DWI cases across New Jersey are under question after a State Police sergeant has been accused of falsifying records.

Sgt. Marc Dennis is facing criminal charges September after a supervisor reported that he had skipped an essential step which is legally required in re-calibrating three breath-testing devices that were used by local police to check the blood alcohol content of drivers accused of driving drunk. Dennis was a coordinator in the State Police Alcohol Drug Testing Unit.

According to the case report, Sgt. Dennis allegedly signed certifications that claimed that he performed the mandatory steps required in checking blood alcohol levels. These documents and blood testing reports are later used in court when proving accuracy of blood alcohol readings. According to his lawyer, Robert Ebberup, Dennis was not guilty of the alleged crimes.

Ever since the issue came to light, a request has been forwarded by the state authorities to appoint a special judge to handle the expected increase in challenges. According to police reports, around seven years worth of DWI convictions will be affected which were tied to the officer.

Moreover, a federal action lawsuit has been filed by a Camden County attorney on behalf of the defendants who were convicted for DWI based on the test results which Dennis carried out and maintained.

In another similar controversy, more than 15,000 drug convictions are under question where a State Police Laboratory in Little Falls in charge of testing drug evidence is under scrutiny. One of the lab technicians, Kamalkant Shah, was accused of falsifying test results in a marijuana case late December. The disclosure brought some 14,800 cases involving evidence Shah either tested or performed peer review on into question. A criminal investigation in that case is ongoing.

The recent controversy has caused an even larger problem where more than 20,000 individual cases across five New Jersey counties have been affected by the case against Sgt. Dennis. According to records obtained by NJ Advance Media, prosecutors are working with the state court system to figure out how to handle the situation.

Dennis is being accused of foregoing a preliminary temperature check which is required under state Supreme Court rules when calibrating three machines, known as Alcotest devices, that are approved for breath-testing in New Jersey. However, officials from the state Division of Criminal Justice stated that the temperature check is not scientifically necessary. The temperature check was legally required under a decision known as State v. Chun, and the same department brought the charges against Dennis initially.

DWI lawyers representing defendants in cases affected by the sergeant’s actions say that Dennis allegedly skipped a crucial step which is meant to ensure that citizens aren’t convicted of drunken driving based on a fault machine reading.

Christopher Baxter, a former municipal prosecutor who now represents clients accused of DWI said, “The science upon which the state obtained approval for the Alcotest device relies on proper calibration. Without proper calibration, the science behind the device’s accuracy falls apart.”

In New Jersey, penalties for a DWI charge hinge directly on the BAC level recorded by an Alcotest device. Although drunken driving is considered a motor vehicle offense in New Jersey instead of a criminal offense, penalties for a DWI conviction can be steep.

The legal blood alcohol content level in New Jersey is 0.08%, but harsher penalties kick in if the driver records more than 0.1%. Therefore, accuracy of breathalyzer devices is crucial in determining the penalties being faced by the offender.

Human oversight is vital when breathalyzer tests are carried out. Jeff Gold, a DWI lawyer who represented the New Jersey State Bar Association in the landmark Supreme Court decision that established the rules for breath-testing says, “Coordinators (like Dennis) are very important, and it’s about all the citizen has to say the machine is working. Otherwise it’s a robot. That calibration is necessary, and small differences matter.”

Dennis belonged to the State Police Unit which was in charge of performing regular calibrations of breath testing machines used by local police departments to make sure that they were working accurately. Based on records, Dennis was responsible for testing machines in Ocean, Monmouth, Somerset, Middlesex, and Union counties. When someone gives a breath sample at the station, it can be tested only once. Once the person walks out, there is no re-testing of the breath sample.

Sergeant Dennis is being accused of skipping an essential step which is legally required in re-calibrating the breath-testing devices, bringing the accuracy of the devices under his supervision under question. The cases and challenges have already started piling up.

Director Elie Honig of the Division of Criminal Justice wrote to the justices of the state Supreme Court in an October 17 filing regarding the case of a New Jersey woman who pleaded guilty to drunken driving charges in Spring Lake municipal court. The woman is seeking to withdraw her plea on the grounds that “Dennis calibrated the Alcotest instrument on which she provided a breath sample.”

The state prosecutor’s office expects that many additional challenges will be filed in connection to the breath test results carried out using Alcotest devices that were calibrated by Dennis.

Lisa J. Rodriguez, a Cherry Hill attorney, also filed a civil class-action lawsuit on behalf of another defendant last month. Ashley Ortiz of Ocean County was convicted of drunken driving last year in Wall Township. Court records show that Ortiz was initially pulled over for having a busted light above her license plate, but she was subjected to a field sobriety test when the officer detected the smell of alcohol on her. Her blood alcohol content later came out to be 0.09 percent, as recorded by the Alcotest device.

A complaint was filed in the U.S. District Court in Trenton in which Rodriguez wrote that those accused of drunken driving, based on the Alcotest results, have very little choice but to plead guilty as these results are mostly considered “indisputably accurate.”

As many as thousands of people who were convicted based on results from machines calibrated by Dennis may seek civil damages in the lawsuit. Prosecutors and attorneys are of the opinion that there could possibly be a lot more DWI cases affected by the criminal case against Dennis. However, the possibility of successfully overturning the DWI convictions in these cases based on the scandal is likely far lower.

Firstly, Dennis was accused of skipping the temperature check while recalibrating just three devices. These devices were used in two DWI cases before they were removed from service. Although the charges bring all cases under question, it is not yet clear if the accusations will affect a few isolated cases only or more.

Drunken driving is a unique offense. In many cases, a conviction doesn’t necessarily require objective testing at all. In most cases, the officers assertion, along with the driver’s behavior, and the results of a field sobriety test, are enough to convict someone.

Source: www.nj.com



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