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Waiting for Answers in New Jersey’s Ongoing DWI Legal Battle

As a result of improper evidence handling by former New Jersey State Police Sergeant Marc Dennis, many DWI cases from the early 2010s in New Jersey were not valid, having lasting ramifications on the courts and the accused. This is in reference to an ongoing investigation into the invalidity of Alcotest machine results in Middlesex, Somerset, Monmouth, Ocean, and Union counties from the early 2010s. Currently, many Post-Conviction Relief (PCR) hearings are being scheduled to rectify the inadmissible evidence, but with no precedent set for the handling of these cases, these hearings are going nowhere. These cases involving invalid evidence with the potential to overturn the decision are known as Cassidy cases.

State v. Chun (2008) set the precedent for finding Alcotest machine results reliable and admissible to find a defendant innocent or guilty of drunk driving. This finding was based on the condition that the machines be calibrated to Dr. Thomas A. Brettell’s protocol, developed in 2004. This case also required the machines to be recalibrated semi-annually to ensure accuracy.

Marc Dennis, a coordinator New Jersey State Police’s Alcohol Drug Testing Unit was responsible for performing the semi-annual calibrations of the Alcotest machines for the previously mentioned counties. Dennis was indicted in 2016 and criminally charged for failing to use a NIST-traceable thermometer to measure the temperature of the simulator solutions used to calibrate Alcotest devices. 20,667 people had provided breath samples using the Alcotest machines that were improperly calibrated, about 13,000 of which entered pleas or were found guilty of drunk driving.

Following Dennis’ charging, State v. Cassidy (2018) produced a 198-page report under Special Master Joseph F. Lisa, stating that the incorrect protocol used by Dennis, namely his failure to use a thermometer that produces NIST-traceable temperature readings, undermined the reliability of the Alcotest, making those breath test results inadmissible. Eileen Cassidy had been charged with a DWI in Spring Lake and had tried to withdrawal her guilty plea after learning about the possible invalidity of the Alcotest. Cassidy died before the Supreme Court ruling, but her case and Lisa’s report opened up the option for thousands of people who had been found guilty and had the Alcotest results used as evidence against them to have their cases looked at again.

The courts attempted to grant the opportunity to rectify any possible injustice perpetrated by the use of the invalid Alcotests by creating a special committee to handle these Cassidy cases. In January of 2019, Judge Robert A. Fall was appointed Special Master to act with judicial authority and make judicial and administrative decisions to the cases affected by the Cassidy decision. He succeeded the appointment of Judge Joseph F. Lisa, J.A.D., to the same role. Notwithstanding the assignment of three other retired Supreme Court judges to this matter in July of 2019, Judge Fall has not heard any of the PCR cases that were assigned to him. This is in spite of the fact that this team was specifically intended to minimize the delays and maximize the efficiency of processing these Dennis cases, as outlined in the memo Designation of Judges Assigned to Resolve Cases Affected by State v. Cassidy by Chief Justice Rabner.

State Judiciary spokesman Peter McAleer has stated that a procedure for resolving the Cassidy cases has been developed and will be sent to defendants. However, no details were given about when to expect this rollout. And, with the pandemic listed as a reason for the delays in processing these challenges, questions remain about how long this process will take and how accessible it will be.

With no contact from the courts on how to move forward in appealing these decisions and PCR hearings, the individuals are at a disadvantage. Not only are some clients stalled in the courts, having their time and attention consumed, but a potentially inaccurate DWI charge has effects on employment opportunities, family life, and more. Additionally, if someone has recently been charged with a DWI and they previously had been found guilty using the inaccurate Alcotest, then this person would be facing a harsher punishment for their “second” DWI, despite the fact that the first offense is of questionable validity. Additionally, we cannot forget those who were found guilty based on now inadmissible evidence and already served their sentences. Losses of licenses, fines, car insurance hikes—it is difficult to measure the emotional, financial, and physical toll on any of these individuals. The current stagnancy of the Cassidy cases in the courts is just another burden.

Our offices have criminal cases which are affected by invalid Cassidy cases that were never resolved. As such, we continue to fight for our clients that are affected by this situation.

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