Alcotest 7110 machine/courtesy photo

Chief Justice Stuart Rabner has assigned four retired Superior Court judges to decide thousands of drunken driving cases that were prosecuted using botched Alcotest readings.

Judge Robert Fall will lead the statewide effort to process the group of cases, and will be assisted by Judges Linda Baxter, Stephan Hansbury and Robert Reed. The judges were assigned in a Supreme Court order Friday to sit as municipal court judges with statewide jurisdiction.

The special judicial assignments follow the Supreme Court’s November 2018 ruling in State v. Cassidy that found a state police technician’s error in calibrating Alcotest devices rendered breath tests performed on those machines invalid. The court ruled in Cassidy that an estimated 20,667 cases based on readings from the improperly calibrated machines must be retried or abandoned. The ruling also relaxed the five-year deadline for bringing postconviction relief petitions if the case involves readings from improperly calibrated machines.

The issue stems from the discovery that Sgt. Marc Dennis of the state police was calibrating breath-testing machines in local police departments without following the procedure specified by the Supreme Court in its 2008 decision State v. Chun, which found the Alcotest 7110 scientifically reliable. Dennis was calibrating the machines with a thermometer that did not meet the standard specified by Chun. He performed calibrations of Alcotest devices for seven years in Middlesex, Monmouth, Ocean, Somerset and Union counties with the substandard thermometer.

In January, following a special master report by former Appellate Division Presiding Judge Joseph Lisa, the Supreme Court concluded that readings from Alcotest machines calibrated with the wrong thermometer were invalid.

The Supreme Court subsequently appointed Fall as a special master to manage the group of cases on a statewide basis, and to develop a scheme for resolving them. Fall subsequently recommended the appointment of a panel of judges to hear the group of cases.

Greggory Marootian, a Livingston attorney who represents several defendants who were charged with drunken driving based on Alcotest readings from machines calibrated by Dennis, is filing postconviction relief petitions in those cases. But if a conviction is vacated based on a postconviction relief petition, the defendant could be prosecuted again, based on the arresting officer’s observations of the defendant and any videotape made at the scene, Marootian said.

A defendant who pleaded guilty has the right to withdraw that plea because they did not know about the issues with the Alcotest reading, said Marootian. If postconviction relief is granted and the guilty plea withdrawn, “it doesn’t mean the whole case is dismissed. Then it’s up to the prosecutor to dismiss or prosecute the case based on observations. Every case is unique, procedurally,” Marootian said.

Jeffrey Gold, a Cherry Hill attorney who represents drunken driving defendants, said he believes the number of cases that will be reheard by the four judges will be far fewer than the estimated 20,000 that came from the attorney general’s office. Gold said his office received calls from many individuals who received notice from the attorney general that their drunken driving conviction was among the 20,000 that was based on Alcotest readings from machines calibrated by Dennis.

Most people may opt to not reopen their cases due to the cost of hiring an attorney and the uncertainty of any outcome, Gold said. The exception is any defendants who were subsequently charged with another drunken driving offense. Vacating the first conviction would reduce the penalty for a second case, said Gold, who represented the New Jersey State Bar Association as amicus curiae in Cassidy.