20,000 DWI Cases Called Into Question in NJ: Is Yours One of Them?
A federal class action lawsuit seeks to throw out thousands of DWI convictions in New Jersey after a State Police sergeant was accused of botching the calibration of breathalyzers police use on suspected drunk drivers.
The lawsuit was filed last month in federal district court of New Jersey by an Ocean County woman who was convicted last year based on a breathalyzer test reading showing .09 percent blood-alcohol content. The legal BAC limit in New Jersey is .08 percent.
The complaint says BAC readings from breathalyzer tests have been thrown into question after the state Attorney General’s Office charged Sgt. Marc Dennis with records tampering, alleging he skipped a critical step in the required six-month recalibration of all Alcotest instruments manufactured by Draeger Safety Diagnostics. Dennis has denied wrongdoing.
The state in September said Dennis had botched the recalibration of at least three instruments that may have been used in more than 20,600 cases in Middlesex, Monmouth, Ocean, Somerset and Union counties. It wasn't clear how many of those cases have led to convictions.
But Lisa J. Rodriguez, the attorney representing plaintiff Ashley Ortiz, on Wednesday said that number could be higher if it's discovered that Dennis mishandled other devices.
The lawsuit seeks to include all people convicted of driving while intoxicated in New Jersey whose cases involved breathalyzer readings from devices handled by Dennis since 2009, the year he was hired.
A spokesman for the state Attorney General's Office, which is named as a defendant along with the State Police and Dennis, declined to comment on pending litigation.
This is the latest lawsuit in response to an evidence-testing scandal in New Jersey.
Earlier this year, state officials charged Kamalkant Shah, a forensic scientist with the State Police North Regional Laboratory, with falsely reporting marijuana results on evidence that he hadn’t actually tested. Shah’s lab had been used for as many as 8,000 drug prosecutions in Bergen, Essex, Hudson, Hunterson, Mercer, Middlesex, Monmouth, Morris, Passaic, Somerset, Sussex, Union and Warren counties.
In March, Sussex County attorney George T. Daggett put the state on notice that he intends to sue on behalf of at least a dozen clients who had been convicted based on evidence handled by Shah’s lab. Prosecutors earlier this year said they would review cases to find evidence that may have been handled by Shah. In April, the state Supreme Court appointed a special judge to handle potential challenges to such cases.
In some cases, the suspected drugs could be retested. But retesting would not be an option with a breathalyzer test device, which reads a person’s breath at the time of suspected impairment.
Ortiz’s class-action lawsuit references the Shah case, saying the state sat on evidence of Shah's wrongdoing for months, allowing prosecutions to go forward on cases that relied on questionable evidence. It alleges a similar pattern in Dennis' case.
Ortiz was pulled over in Wall Township for a broken light on Aug. 31, 2015. She was arrested after failing a field sobriety test and administered an Alcotest at the police station. A judge suspended her license for three months after she pleaded guilty. Her lawsuit says she wouldn't have taken the plea if her attorney had known about the allegations against Dennis.
The lawsuit says Ortiz and others “have reason to call into question the accuracy and integrity of all the state’s Alcotest results obtained from Alcotest instruments allegedly calibrated or recalibrated” by Dennis during his tenure.
The state Supreme Court ruled in 2008 that breat results are admissible scientific evidence in DWI cases.
But to be admissible, the device had to have been in working order and inspected according to procedure; used by a certified operator; and administered according to official procedure. The most recent calibration reports and the credentials of the coordinator who performed the test have to be entered into evidence along with the BAC reading.
“Because Dennis fabricated the calibration reports for various Alcotest instruments, the state now lacks credible documents that are foundational prerequisites for introduction of any BAC result produced by an Alcotest instrument certified, calibrated or recalibrated” by Dennis, Ortiz's lawsuit says.
The five-count complaint, alleging 14th Amendment due process violations, seeks an unspecified amount of damages as well as court orders requiring the state to review all DWI cases potentially involving Dennis in order to determine whether any convictions should be reversed as well as refunding all DWI fines, wiping convictions from driver and criminal records, and blocking further prosecutions of cases involving tests from instruments handled by Dennis.
Rodriguez is with the Cherry Hill firm Schnader Harrison Segal & Lewis.