The New Jersey Attorney General’s Office is getting an earful of complaints over its request that the Supreme Court name a special master to consider relaxing the rules for calibration of the Alcotest 7110 MKIII-c, which is used to estimate from a breath test the blood-alcohol level of persons suspected of drunken driving.
The state is asking the court to eliminate a requirement set forth in the decision State v. Chun that the thermometer used to check simulator solution temperatures before each calibration of the Alcotest should conform to standards of the National Institute of Standards and Technology. But the New Jersey State Bar Association and some defense lawyers disagree with the state’s motion to have the court appoint a special master.
The state made its motion after filing criminal charges against New Jersey State Police Sergeant Marc Dennis, who is accused of falsely certifying that he conducted calibration of Alcotest devices even though he used non-NIST thermometers. His conduct is believed to involve more than 20,000 cases. Dennis faces charges of fourth-degree falsifying records and third-degree tampering with records.
The requirement for a NIST-compliant thermometer is among the conditions set in Chun, a landmark 2008 state Supreme Court ruling that found the Alcotest scientifically reliable under certain conditions. The attorney general, which asked the court Oct. 17 to appoint a special master, said a defendant named Eileen Cassidy had moved to vacate a guilty plea in a case in which Dennis submitted a false certification, and more such filings are anticipated.
Although the state recognizes that the NIST thermometer is required by the court in Chun, it said in court papers that “the use of the thermometer is not required out of scientific necessity.”
The attorney general is asking the court to grant direct certification of the Cassidy case and the rest of the 20,000. Otherwise, “it will take years for this matter (and other matters) to be fully briefed in the municipal court, Law Division, and then in the Appellate Division before direct certification may be granted. During that time, different courts may reach different rulings as to the same underlying scientific issue,” the state said in court papers. But if the court grants direct certification, “a special master can issue a clear scientific ruling at the outset. This ruling will provide immediate guidance to municipal courts concerning the underlying scientific issue described above, and the scientific ruling will ensure predictable, uniform results throughout the state.”
The New Jersey State Bar Association, which was invited to give input on the special master motion, urged the court not to name a special master and to “hold that the requirement of a NIST-traceable thermometer was decided in Chun and must be adhered to in order to establish the evidential reliability of any Alcotest breath reading.”
Point Pleasant attorney John Menzel also opposed the attorney general’s motion. He said it relies on a “false assertion” that use of a NIST thermometer is immaterial to proper calibration of the Alcotest. The state’s position is contradicted by the record in Chun, in which six scientists and other experts testified to support the position that use of a NIST thermometer “is the essence of recalibration.” Menzel listed six scientists and other experts who testified on the need for thermometers that meet NIST standards.
Menzel and three other defense lawyers— Evan Levow, Matthew Reisig and Samuel Sachs—were invited by the Supreme Court to comment on the state’s motion because they represented clients in the original proceedings leading to Chun.
Levow also opposed the motion for a special master. The attorney general announced in 2013 that it would replace the Alcotest 7110 by 2016, but those plans are now “failed or delayed,” he said in court papers. “It’s time to reclaim intellectual honesty and scrap the Alcotest in New Jersey. No special master is required,” he said.
Reisig, who was joined by Sachs, supported the appointment of a special master. He said a precedent was set by the appointment in April of Superior Court Judge Edward Jerejian as special master to cope with proceedings generated by the discovery of misconduct by a technician at the state crime lab in Little Falls. But Reisig also called on the state to follow through on its plans to replace the Alcotest.
“I don’t see how the court can’t entertain the Dennis scandal without also making inquiry of the state as to how it’s going to replace the Alcotest,” Reisig said.
Peter Aseltine, a spokesman for the Division of Criminal Justice, said the state was proceeding with plans to replace the Alcotest 7110, but he gave no details. He declined to comment on the attorneys’ statements. Contact the reporter at firstname.lastname@example.org mailto:email@example.com . On Twitter: @ctoutantnjlj.
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