New Jersey Supreme Court Appoints Four-Judge Panel to Review DWI Convictions Involving Faulty Alcotest Reports

The device used for breath testing by New Jersey police in investigations of suspected driving while intoxicated (DWI), known as the Alcotest, has come under significant scrutiny several times in recent years. In order to ensure the accuracy of the results produced by the device, police must perform regular maintenance and calibration. Our New Jersey DWI lawyers were involved in a case before the New Jersey Supreme Court in 2008 that produced a set of procedures police must follow for Alcotest results to be admissible in court, including standards for device maintenance and calibration. Starting in 2016, allegations of misconduct by a police sergeant in charge of maintaining Alcotest devices in five counties called over 20,000 DWI cases into question. In July 2019, the New Jersey Supreme Court announced that a four-judge panel would review those cases, and could grant post-conviction relief (PCR) when appropriate.

New Jersey’s DWI statute allows prosecutors to prove that a defendant was impaired with evidence of blood alcohol content (BAC). A BAC of 0.08 percent or higher creates a presumption of intoxication. Police throughout the state use the Alcotest to perform breath tests on DWI suspects. In State v. Chun, the state supreme court addressed concerns about the Alcotest’s accuracy and reliability. Its 2008 decision in that case requires police to follow specific calibration procedures, and to document routine performance of those procedures. Prosecutors seeking to prove DWI with BAC evidence must produce the most recent maintenance report predating the use of a device by a defendant.

A 2016 indictment against a former sergeant with the New Jersey State Police accused him of filing false Alcotest maintenance reports for devices in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. An investigation found that 20,667 DWI cases from 2008 to 2016 relied on devices with potentially false documentation. The state supreme court appointed a special master to review the matter. The special master issued an order in November 2017 staying all cases involving potentially-affected Alcotest machines. Her investigation found that the falsified records called a substantial number of DWI cases into question. The state supreme court affirmed this report in a November 2018 ruling.

The court appointed a new special master, retired Superior Court Judge Robert A. Fall, in January 2019 to review the cases affected by its ruling. Judge Fall recommended the appointment of a panel of judges to resolve those cases. The court took his advice and announced the appointment of a four-judge panel, including Judge Fall, in July.

According to the court’s order, the panel has “statewide jurisdiction to resolve matters subject to the statewide administration of cases affected by” the state supreme court’s November 2018 ruling. The Somerset County Prosecutor’s Office sent letters out in 2019 advising people affected by that ruling of their right to file for PCR under New Jersey Court Rule 7:10-2. PCR is available on several grounds, including “substantial denial in the conviction proceedings of defendant’s [constitutional] rights.”

If you are facing charges of alleged DWI in a New Jersey municipal court, DWI lawyer Evan Levow is available to answer your questions and address your concerns. Please contact us today at (877) 593-1717 or online to schedule a free and confidential consultation with Mr. Levow, who represented the lead defendant in the landmark State v. Chun case.

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