After a decade of NJSBA advocacy in Alcotest litigation, Supreme Court upholds special master report invalidating almost 21,000 DWI convictions

In the latest round of litigation over the reliability of breath test readings produced by the Alcotest 7110 in New Jersey, the Supreme Court upheld a special master's findings that certain results produced by Alcotest machines that were improperly calibrated are inadmissible, invalidating the convictions of 20,667 people.

The New Jersey State Bar Association, which has monitored the use of the machine since its inception in New Jersey, and which participated in the initial litigation establishing the scientific reliability of Alcotest results, participated as amicus curiae. In its brief in State v. Cassidy, written by Arnold N. Fishman, Jeffrey E. Gold and Miles S. Winder III, the state bar urged the Court to not only confirm the proper calibration procedure, but to take affirmative steps to preserve the confidence and integrity of the judicial process.

At the heart of this challenge was whether breath tests from Alcotest machines that were not calibrated using a National Institute of Standards and Technology (NIST) traceable thermometer were valid to uphold convictions of those charged with driving under the influence. A state police sergeant failed to properly calibrate the Alcotest instruments and later filed false certifications stating that he did, calling into question the results of those tests that were ultimately used as evidential breath samples.

Use of the NIST traceable instrument during calibration was a specific prerequisite to admissibility of the breath tests established by the Court in State v. Chun. There, Gold and Fishman again participated on behalf of the NJSBA in a months-long special hearing to determine if, and on what conditions, breath test results from the then newly introduced Alcotest machine could be admissible in driving under the influence (DUI) prosecutions. After hearing testimony from a variety of experts, including representatives from the machine's manufacturer, Draeger, Special Master Judge Michael Patrick King recommended that the Court condition admissibility on a number of very specific requirements, including that the temperature of the simulator used in the Alcotest machine be separately and objectively measured using a NIST-traceable thermometer every six months during calibration.

In its brief to the Supreme Court in Cassidy, the NJSBA noted that the “decision in Chun was a careful balance of many parts needed to make a “sufficiently” scientifically reliable system for use in New Jersey.”

In Cassidy, 10 years after Judge King's initial recommendations, Special Master Joseph F. Lisa held a second round of evidentiary hearings. The NJSBA once again participated in the month-long proceeding that elicited hundreds of pages of testimony from experts about the operation of the machine. In the end, Judge Lisa issued a 198-page report that concurred with Judge King's original conclusion that the failure to use a thermometer that produces NIST-traceable temperature readings in the calibration process undermines the reliability of the Alcotest.

In a unanimous opinion written by Justice Walter Timpone, the Supreme Court said, “We owe a great debt to the Special Master for his diligence and insightfulness as evident in his extensive and thorough report. Because his findings are supported by substantial credible evidence in the record, we adopt them.”

Adopting the NJSBA's reasoning, the Supreme Court noted its agreement with the special master's findings and conclusions, asserting that skipping the NIST-traceable measurement introduces an “unquantifiable amount of uncertainty” that the Supreme Court found integral to the reliability of the Alcotest in Chun. The Court rejected the state's contention that the risk of miscalibration is miniscule due to the other fail-safes in the calibration procedure. Noting the special master's reliability on Dr. Thomas A. Brettell, who developed the current calibration protocol when he was the director of the state's Office of Forensic Sciences, the Court found notable his testimony that the fear of a laboratory bias led him to include the NIST-traceable thermometer in the calibration procedure.

The Court vacated the conviction of Eileen Cassidy, the defendant, who died in March of this year at the age of 54 after a battle with cancer. The Court found the case justiciable because of the significant public importance of the issue and that the issue is likely to recur.

The Court also adopted several other proactive measures by the NJSBA to protect the rights of defendants now and in the future. It ordered the state to notify all of the affected defendants of its decision and recommended that the state require the manual recording of the NIST-traceable readings be provided going forward. The Court further lifted the stay on all pending cases so that deliberations may commence on whether and how those cases should proceed. For cases already decided, defendants may pursue relief and the five-year time bar pursuant to New Jersey Rule 7:10-2(b)(2) is relaxed. The Court further asked the director of the Administrative Office of the Courts to monitor these cases and recommend how best to administer them in the event any special measures are needed.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.