New Jersey Supreme Court Ruling on Tainted Alcotest Results Calls More than 20,000 DWI Cases into Question

Most New Jersey police departments use a device known as the Alcotest to measure blood alcohol content (BAC) in breath samples submitted by individuals suspected of driving while intoxicated (DWI). Under New Jersey DWI law, a person with BAC of at least 0.08 percent is presumed to be legally impaired. In 2008, we were involved in a case before the New Jersey Supreme Court, State v. Chun, that established statewide procedures for calibrating and maintaining Alcotest devices and administering breath tests. In 2016, a sergeant with the New Jersey State Police was charged with allegedly falsifying Alcotest calibration records. The New Jersey Supreme Court has now effectively tossed out Alcotest results in thousands of cases involving machines under that sergeant’s supervision. The court’s decision in State v. Cassidy, issued on November 13, 2018, is likely to have a substantial impact for months to come.

The Alcotest 7110 MKIII-C requires careful calibration to ensure reliable results. The Chun ruling held that Alcotest results are admissible to establish BAC in DWI cases. It also held, however, that police must follow specific procedures to maintain and calibrate the devices, and that prosecutors must make documentation available about the maintenance and calibration of the device used in each case.

The “0.10 simulator solution” used in Alcotest control tests must be maintained within a specific temperature range. Chun requires measurement of this temperature with a thermometer that is traceable to standards established by the National Institute of Standards and Technology (NIST). A “Calibration Report” and “Certificate of Analysis of the 0.10 Simulator Solution” are among the “foundational documents” required by Chun to establish an Alcotest device’s accuracy.

In September 2016, prosecutors charged a former State Police sergeant with three counts: second degree official misconduct, third degree tampering with public records, and fourth degree falsifying records. The sergeant had been responsible for semi-annual calibrations on Alcotest devices in five New Jersey counties: Union, Somerset, Middlesex, Monmouth, and Ocean. The state’s indictment accuses him of filing reports falsely claiming that he performed the required calibrations. The allegedly false certifications affect 20,667 DWI cases.

The defendant in Cassidy pleaded guilty to DWI in municipal court in September 2016, based on Alcotest results showing BAC above the legal limit. Soon afterwards, she learned of the criminal case against the sergeant and moved to withdraw her plea. At this point, the New Jersey Attorney General became involved in the case. It petitioned the New Jersey Supreme Court directly. The court took the case because of the substantial number of cases affected by the sergeant’s alleged misconduct. It appointed a special master, who issued an order in November 2017 staying all pending DWI cases involving Alcotest results using devices affected by the pending criminal case.

In a report issued in May 2018, the special master concluded that the alleged misconduct severely undermined the reliability of the Alcotest results. She wrote that “accurate temperature readings of the simulator solutions are the foundation upon which the entire calibration process is built.” The court adopted his findings. It lifted the stay on the pending cases to allow those defendants to seek further relief. Although the defendant passed away in March 2018, the court granted her request to vacate her conviction.

If you are facing alleged DWI charges in a New Jersey municipal court, DWI attorney Evan Levow is available to help you. Please contact us at (877) 593-1717 or online today to schedule a free and confidential consultation to see how our experienced and skilled team can help you.

More Blog Posts:

Court Reviews Accuracy of Alcotest Device Used in New Jersey DWI Cases, New Jersey DWI Attorney Blog, October 12, 2018

Alleged Mishandling of DWI Evidence by New Jersey Law Enforcement Official Could Affect Thousands of Cases, New Jersey DWI Attorney Blog, December 2, 2017

Accuracy of Alcotest Devices in New Jersey DWI Cases Questioned in Lawsuit, New Jersey DWI Attorney Blog, December 14, 2016