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Records Tampering In DWI Cases By State Police Officer

What Was Sergeant Marc Dennis Actually Accused Of?

Marc Dennis was charged with falsifying records on the calibration of Alcotest machines by failing to use an NSIT-traceable thermometer to check the temperature of the samples (which are heated in the machine to 34 degrees Celsius). The falsification places over 20,000 concluded prosecutions at risk. This is a tale of back and forth between the Defense Bar, the State Police, and the Supreme Court. The use of a traceable thermometer was first required by the State Police and signed off by the Supreme Court in State v. Chun where the Court had required an “Ecto Hart” NSIT thermometer. In State v. Holland, the Bar sought preclusion of breath samples because the State Police were not using Ecto Hart brand NSIT thermometers.

The Supreme Court ultimately permitted other (cheaper) brands to be used, so long as they were using an NSIT thermometer. There were other requirements on the State Police, including changes to the firmware, and setting up a database. In 2015, the Bar returned to the Supreme Court and asked it to enforce the prior requirements. The State Police asked to have the Court release them from implementing the additional safeguards since the State Police expected to or planned to start using a new machine in 2016 and retire the Alcotest. Shockingly, the Supreme Court did just that. The additional safeguards on the decade-old machine were never implemented basically because the State Police did not want to.

We return to Marc Dennis, who is arrested for falsifying records by not using an NSIT-traceable thermometer. The State Police have now returned to the Supreme Court and asked that they no longer be required to use the NSIT thermometer. The justification is that Marc Dennis (whom they are attempting to prosecute) placed many convictions at risk. Also, the State Police now say that they have no current plans to replace the Alcotest machine, incredibly enough. A copy of the State Bar’s response to this insanity is attached.

What Is The Proper Protocol Involved With The Calibration Of Alcohol-testing Devices?

The term “calibration” refers to tests that are performed by breath test coordinators of the New Jersey State Police to confirm that the machine is operating properly. It is important to point out that since there are only a limited number of coordinators statewide and calibration can be a time-consuming process, the timeliness of calibrations can often be pushed to the limit. With this in mind, it is important that all calibration certificates and related information are not only steadfastly demanded from the prosecutor but thoroughly reviewed when received by defense counsel. Ironically, it is surprising just how frequently this does not occur although lack of calibration is a powerful means for a DWI lawyer to invalidate breathalyzer readings.

In accordance with the Supreme Court decision in State v. Chun, calibration of every Alcotest breathalyzer must be conducted twice a year (i.e., semi-annually). To calibrate the device, a probe is inserted into the machine. Solutions are then introduced into the Alcotest that contain ethyl alcohol concentrations at specific levels: .04%, .08% and .16%. If the BAC readings registered on the machine are within an acceptable approximation of the specified solution level, then the breathalyzer is properly calibrated.

If the BAC results are outside the acceptable range, the device is out of calibration and must be fixed and/or adjusted. As stated, the calibration results do not have to be exactly in line with the level of ethyl alcohol contained in the calibration solution. The machine is in proper working order if the calibration results are within .05% of the specified solution level. The results of the calibration tests and all internal data are downloaded onto a State Police database accessible by attorneys and their consultants.

Have You Been Charged With A DWI?

If you have questions about the calibration in your DWI case, contact the Law Offices of James A. Abate for a free consultation by calling 908-643-7005 or by sending us an email today.