NJ Special Master Concludes 20,000 DWI Convictions Based on Unreliable Breath Tests

Last September we discussed a stunning development in New Jersey DWI law. Prosecutors charged a New Jersey State Trooper with failing to follow established protocols for calibrating the Alcotest 7110 MKIII-C devices used to test a DWI suspect's blood-alcohol content. More egregiously, prosecutors alleged the Trooper falsely certified that he had followed the protocols.

According to state officials, more than 20,000 individuals provided breath samples that were subsequently analyzed by Alcotest devices calibrated–or mis-calibrated, as it were–by the accused Trooper. Consequently, at the request of prosecutors the New Jersey Supreme Court appointed a The Honorable Joseph R. Lisa, J.A.D. (retired), as a Special Master to consider the legal question of whether the Trooper's actions “undermine or call into question the scientific reliability of breath tests subsequently performed on the Alcotest machine.” On May 22, 2018, Judge Lisa published his findings, which answered “yes” to this question.

Crime Lab Official Skipped Scientifically Critical Step in Calibration Process

As Judge Lisa explained in his findings, the proper calibration of the Alcotest requires a coordinator–which here was the accused Trooper–to “measure the temperature of the simulator solutions used in the calibration process with a thermometer that produces temperature measurements traceable to the National Institute of Standards and Technology (NIST).” Dr. Thomas Brettell, the former head of the State Police crime lab, mandated this thermometer step “for scientific reasons” when the Alcotest was first approved for use in New Jersey DWI cases 17 years ago.

Judge Lisa found that as a matter of law, the Trooper's alleged “failure to perform the NIST-traceable step clearly calls into question the subsequent validity of the breath test results derived from that device.” Indeed, the State of New Jersey's own expert witnesses agreed that the reliability of the Alcotest is “reduced” when the step is skipped and that there is no scientific justification for removing the step from the calibration procedure.

To the contrary, Judge Lisa explained the thermometer step was necessary before a coordinator could “proceed” with the rest of the calibration. Overlooking this step means “that mis-calibrations can occur, which, in turn, will produce inaccurate breath test readings which will go undetected.” While the State argued the step was simply there to “increase confidence in results,” Judge Lisa found there is no distinction here between “confidence” and “reliability.”

Given that an Alcotest result, standing on its own, can legally prove that a defendant is guilty of a DWI, Judge Lisa found that following all of the mandated calibration steps was not a “trivial or unimportant safeguard.” Rather, it was critical to establishing the reliability of key evidence. For those reasons, Judge Lisa concluded the failure to follow procedures reduced the reliability of the affected Alcotest devices “to a level that is less than sufficiently scientifically reliable to allows its reports to be admitted in evidence.”

Could Your DWI Case Be Reopened?

The New Jersey Supreme Court will have the final say on whether or not to adopt Judge Lisa’s findings. If the justices do accept those findings, it means that more than 20,000 defendants previously convicted of DWI may have grounds to reopen their cases. Having a DWI conviction overturned could have a significant impact on your future.  The criminal attorneys at Hoagland, Longo, Moran, Dunst & Doukas, LLP are experienced in the intricacies of DWI law.  If you wish to schedule a free initial consultation to discuss your options, do not hesitate to contact William G. McGuinn at wmcguinn@hoaglandlongo.com or call (732) 545-4717.