Allegations of Record Tampering Could Affect 20,000 New Jersey DWI Convictions

In criminal prosecutions, the state has the burden of proving a defendant’s guilt beyond a reasonable doubt. This is an intentionally difficult burden, designed to protect the rights described in the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution. Although driving while intoxicated (DWI) is a motor vehicle offense in New Jersey, rather than a criminal one, most of these protections apply in DWI cases. Defendants can challenge the admissibility or sufficiency of the state’s evidence before or during trial. They can also challenge evidence on appeal or in a motion for post-conviction relief (PCR), especially if new information becomes available. Recent allegations of records tampering against an officer of the New Jersey State Police may create ample opportunities for such challenges, since the allegedly fraudulent records potentially affect 20,000 DWI cases statewide.

The New Jersey Rules of Evidence govern the use of evidence in court proceedings. One of the most important rules involves statements made outside the presence of a judge or jury, which are known as “hearsay.” A statement is considered inadmissible hearsay when it is “offered in evidence to prove the truth of the matter asserted.” In plain English, a police officer can testify about their own personal observations of the defendant but not about statements made by other people. Public records kept in the ordinary course of government business, such as reports generated by an Alcotest device, are generally excepted from the hearsay rule. This exception, however, is subject to some exceptions of its own.

A 2007 decision by the New Jersey Appellate Division, State v. Kent, addressed the use of documentary evidence in a DWI case. The court held that a chemist report describing the results of a blood test is inadmissible at trial if the defendant does not have the opportunity to cross-examine the individual who prepared the report. The case drew on the Supreme Court’s 2004 ruling in Crawford v. Washington, which addressed the admissibility of written statements or reports that are deemed “testimonial” and therefore subject to the hearsay exclusion.

Defects in government records could also render them inadmissible. In a 2001 Appellate Division case, State v. Jorn, the pages of the defendant’s alcohol influence report (AIR) were not sequentially numbered, as required by statute. The defendant argued that the statute’s use of the word “shall” meant that this sequential numbering was mandatory, in part “to eliminate the possibility of police tampering with the AIR forms.” The court found “some force to [the] defendant’s argument” but ultimately held that the lack of sequential numbering did not “deny [the] defendant a fair and impartial test.” A more significant defect could lead to the exclusion of evidence.

The current situation mentioned above involves a State Police sergeant accused of falsifying records. Police are required by law to follow certain steps to test and calibrate Alcotest devices. They must sign a certification when they complete these steps, which is admissible in court to establish the device’s accuracy. The sergeant is accused of signing multiple certifications without actually performing the calibration steps. Prosecutors are reportedly reviewing more than 20,000 cases possibly affected by the allegations, and a lawsuit filed in October 2016 asserts civil rights claims against the officer and the State Police.

Evan Levow is a skilled and experienced DWI attorney who has defended the rights of people in the New Jersey court system for over 20 years. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our team.

Blog Posts:

New Jersey Courts Can Convict a Defendant of DWI Even Without Direct Evidence that They Were Driving, New Jersey DWI Attorney Blog, August 30, 2016

Defendant in New Jersey DWI Case Challenges Admissibility of Alcotest Results, Claiming Spoliation of Evidence, New Jersey DWI Attorney Blog, August 22, 2016

New Jersey Appellate Court Reverses DWI Conviction, Finding Problems with Field Sobriety Tests, Other Evidence, New Jersey DWI Attorney Blog, May 3, 2016