Federal Appellate Court Rules on Civil Rights Claim Arising from Allegedly Fraudulent Alcotest Reports by New Jersey Police Sergeant

Police departments throughout New Jersey use a device known as the Alcotest to test breath samples in cases of suspected driving while intoxicated (DWI). New Jersey prosecutors charged a former State Police sergeant with multiple offenses in 2016, alleging that he failed to perform maintenance on Alcotest devices under his supervision, as required by state law, and then filed fraudulent reports stating that this maintenance was performed. The New Jersey Supreme Court recently ruled in State v. Cassidy that as many as 20,000 DWI defendants may challenge their charges or convictions. At the federal level, the Third Circuit Court of Appeals reviewed claims that the former sergeant’s alleged acts violated DWI defendants’ civil rights in Ortiz v. N.J. State Police.

The Alcotest device tests breath samples to determine blood alcohol content (BAC). Under the New Jersey DWI statute, BAC of 0.08 or higher establishes a presumption that the person was legally impaired by alcohol. In 2008, we participated in a landmark proceeding before the New Jersey Supreme Court that challenged the the accuracy of the Alcotest device and the admissibility of its results. While the court’s ruling in State v. Chun affirmed the use of the Alcotest device, it established strict procedures for maintaining and calibrating the device, and for providing documentation to DWI defendants indicating that police departments have followed these procedures.

After the former sergeant was arrested and charged, the New Jersey Supreme Court appointed a special master to determine whether the alleged failure to properly calibrate and maintain Alcotest devices in multiple counties affected the reliability of the evidence produced by those devices. The special master issued a report in March 2018 concluding that the failure to use a particular type of thermometer during calibration, as required by Chun, rendered the results of more than 20,000 tests scientifically unreliable. The state supreme court adopted the special master’s report in November 2018, effectively tossing out the state’s BAC evidence in over 20,000 DWI cases.

A New Jersey DWI defendant filed a putative class action against the New Jersey State Police, the former sergeant, and several other officials in late 2016, around the same time prosecutors filed criminal charges against the former sergeant. The charge against her involved a breath test using an Alcotest maintained by the former sergeant, which showed her BAC as 0.09 percent. Her lawsuit claimed that the former sergeant’s alleged actions violated her civil rights, as well as the civil rights of other DWI defendants in similar situations. She asserted a cause of action for civil rights violations under 42 U.S.C. § 1983.

In August 2017, a U.S. District Judge dismissed the lawsuit, citing a 1994 decision by the U.S. Supreme Court, Heck v. Humphrey. That decision held that a person charged with or convicted of an offense may not use a § 1983 claim to challenge the legality of the charges against them. The Third Circuit Court of Appeals agreed with the district court. It affirmed the dismissal of the lawsuit, but noted that the dismissal was “without prejudice.” This means that the plaintiff could refile a § 1983 lawsuit if she were to succeed in having her conviction overturned based on the state supreme court’s Cassidy ruling.

If you have been charged with alleged DWI in a New Jersey court, DWI lawyer Evan Levow is available to assist you. Please contact us today at (877) 593-1717 or online to schedule a free and confidential consultation with a member of our experienced and skilled team.

More Blog Posts:

Alleged Mishandling of DWI Evidence by New Jersey Law Enforcement Official Could Affect Thousands of Cases, New Jersey DWI Attorney Blog, December 2, 2017

Accuracy of Alcotest Devices in New Jersey DWI Cases Questioned in Lawsuit, New Jersey DWI Attorney Blog, December 14, 2016

Allegations of Record Tampering Could Affect 20,000 New Jersey DWI Convictions, New Jersey DWI Attorney Blog, December 12, 2016

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