Friday, October 20, 2017
State Trooper’s failure to follow rules could have thousands of DWI guilty pleas vacated.
State Trooper’s failure to follow rules could have thousands of DWI guilty pleas vacated. If the Supreme Court's requirements in State v Chun and State Police regulations were not followed, the convictions should be vacated. Why have laws and procedures if State Police are not required to follow them.
20K N.J. residents busted for DWIs could have their cases appealed
Posted on October 20, 2017 at 7:30 AM
By S.P. Sullivan ssullivan@njadvancemedia.com,
NJ Advance Media for NJ.com Star Ledger
-- Prosecutors in New Jersey are notifying more than 20,000 people charged with drunken driving that their cases are under review after a State Police sergeant who oversaw breath-testing devices was accused of falsifying records, NJ Advance Media has learned.
County prosecutors have been sending letters to people charged with driving while intoxicated between 2008 and 2016 that a specially appointed judge would weigh "whether you are entitled to relief" based on the accusations against the sergeant.
Prosecutors and defense attorneys told NJ Advance Media the number of cases that could be thrown out as a result of the criminal inquiry is likely low. But the issue, which came amid a similar probe of the State Police drug lab, created a morass of legal challenges, which could take years to sort out.
Sgt. Marc Dennis, a coordinator in the State Police Alcohol Drug Testing Unit, was accused last year of lying on official documents about completing a legally required step in re-calibrating the machines, known as Alcotest devices, which are used to check the blood-alcohol level of accused drunken drivers.
The sergeant, who denies the charges against him, was allegedly observed skipping the step in calibrating just three machines. But the criminal accusations raised a cloud of doubt over every device touched by the trooper, who performed routine checks on devices used by local police across five counties.
"Sergeant Dennis' alleged false swearing and improper calibrations of these three instruments may call into question all of the calibrations performed by Sergeant Dennis over the course of his career as a coordinator," said one letter, a copy of which was obtained by NJ Advance Media.
The letters were sent in recent weeks to DWI defendants in Middlesex, Monmouth, Ocean, Somerset, and Union counties.
Dennis was charged in September 2016 with second-degree official misconduct, third degree tampering with public records and fourth degree falsifying records. He was indicted on those same charges in December, but the misconduct charge was dropped in a second indictment in June, records show.
His attorney, Robert Ebberup, said Dennis denied any wrongdoing.
"At the end of the day, I'm sure he is going to be exonerated," Ebberup said.
In the meantime, a retired appellate judge, Joseph Lisa, is sorting through the thicket of as many as 20,667 cases affected by the claims against the sergeant.
According to an April Supreme Court order appointing him as "special master," Lisa will rule on whether Dennis' alleged failure to perform a preliminary temperature check required under Supreme Court rules would "undermine or call into question the scientific reliability of breath tests subsequently performed" on those devices.
The state Division of Criminal Justice has maintained that the check, while legally required, was not scientifically necessary.
But under state law, a person is guilty of driving under the influence if they have a blood-alcohol level of .08 percent. Tougher penalties kick in for those who blow a .10 or higher.
Defense attorneys argue that because guilt or innocence or the level of punishment can hinge on a few decimal points, anything that suggests protocols weren't followed should bring test results into doubt.
A spokesman for the state judiciary said a hearing date on the matter had not been set.
The state also faces a potential class-action lawsuit filed on behalf of those defendants. That suit, filed in federal court, was dismissed in August but could be reinstated pending the state judge's decision
source: http://www.nj.com/politics/index.ssf/2017/10/20k_dwi_cases_could_be_tossed_amid_state_police_pr.html.
Alcotest Litigation
The following is a letter that was sent to all potentially affected individuals who were arrested for or convicted of drunk driving between 2008 and 2016 in Somerset County. The State Police Sergeant mentioned below also calibrated Alcotest machines that were in use in Somerset County during the aforementioned relevant time frame.
The next case management conference is on November 2, 2017. The Special Master has indicated that he would like to start the hearing on November 28, 2017. Defense counsel has requested a later start date, but as of now the Special Master wants to start on November 28th.
SAMPLE LETTER
Court records indicate that you were arrested for and/or convicted of drunk driving sometime between 2008 and 2016. This letter is to inform you that it is possible there may have been an issue in the proceedings in your DWI case.
Specifically, it has been alleged that on or about October 6, 2015, and on or about October 7, 2015, New Jersey State Police Sergeant Marc Dennis, a former coordinator in the Alcohol Drug Testing Unit, calibrated the Alcotest 7110 MKIII-C (“Alcotest”) evidential breath testing instruments in the City of Asbury Park, the City of Long Branch, and the Township of Marlboro, without following the established protocol and then certified that the calibration was done in accordance with the required procedures. Sergeant Dennis’s alleged false swearing and improper calibrations of these three instruments may call into question all of the calibrations performed by Sergeant Dennis over the course of his career as a coordinator (i.e. 2008 - 2016), and might possibly entitle you to future relief.
The New Jersey Supreme Court has assigned the Honorable Joseph Lisa, P.J.A.D. (retired and t/a on recall) to preside over a hearing to determine whether Sergeant Dennis’s failure to perform a specific step in the established protocol adversely affected the scientific reliability of the calibrations he performed, as well as any evidential breath tests conducted on those Alcotest instruments. The outcome of these legal proceedings, which are now underway, will determine whether you are entitled to future relief.
If you believe that you are presently suffering any adverse consequences from your DWI conviction or pending DWI case, you should consult an attorney to determine if you are entitled to emergent, immediate relief. When the above-noted hearing is completed, Judge Lisa will determine whether Sergeant Dennis’s failure to perform the specific step in the established protocol adversely affected the scientific reliability of the calibrations he performed. If the Judge decides that it did have such an affect, he will also determine whether you are entitled to relief therefrom.
Updates concerning the Alcotest litigation mentioned above will be available on the Somerset County Prosecutor’s Office website at www.scpo.net under the heading Alcotest Litigation. Please check that website for the most current status of that litigation as you will not receive any additional letters about that litigation from this office.
Very truly yours,
______________________
Thomas J. Chirichella
First Assistant Prosecutor
see also http://www.scpo.net/resources_alcotest.html
Thursday, October 19, 2017
Review of the Major Municipal Court Cases 2016-2017 Middlesex County Bar Association Seminar MCBA Tuesday, November 21, 2017
Tuesday, November 21, 2017 Municipal Court Practice CLE Seminar
2:00 PM until
4:00 PM
Where: MCBA Office 87
Bayard Street New Brunswick, New Jersey 08901
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Cost: $25-Law
Clerks; $35-MCBA Young Lawyers; $40-MCBA Members; and $75-All Other To register
or Call 732.828.3433, x. 102
Index to Major cases to be discussed by Ken Vercammen
and David Spevack at seminar
1. DWI
Refusal notice withstands challenge. State v Quintero
443 NJ Super. 620 (App. Div. 2016)
2. Sup Mt denied where police looking in house for
missing dementia patient found pot plants State v Mordente
444 NJ
Super. 393 (App. Div. 2016)
3. Police video is public record under OPRA
Paff v Ocean County Prosecutors Office
446 NJ Super. 163
(App. Div. 2016)
4. Defense to refusal sometimes where person
medically unable to provide breath samples. State
v. Monaco 444
NJ Super 539 (App. Div. 2016
5. No Jury trial for DWI. State v. Denelsbeck
223 NJ 103 (2016)
6. Police can stop for one
broken taillight out of 4
State v.
Sutherland
445 NJ Super. 358 (App. Div. 2016)
7. US
Supreme Court permits DWI breath tests but rejects blood test without warrant.
Birchfield v. North Dakota 136 S. Ct. 2160 (2016)
8. Out of state DWI counts for criminal driving while
suspended. State v.
Luzhak
445 NJ Super. 241 (App.Div. 2016)
9. Prosecutor must provide videotape and audiotape plus names of
officers from other towns involved in stop State v. Stein 225 NJ 582
(2016)
10. Suppression granted where stop based only for
high beam not
affecting driving State v. Scriven
226 NJ 20 (2016)
11. NJ Supreme Court makes “plain view” car searches
easier especially when drug dealers go through toll without paying and are
pulled over with bricks of heroin in plain view. State v. Gonzales __ NJ __
(2016)
12. Driver with prior school zone DWI sentenced as
2nd Offender. State v. Wheatley
447 NJ Super. 532 (App. Div. 2016
13. Town outside surveillance camera not subject to
OPRA but maybe subject to common law. Gilleran v. Township of Bloomfield
14. Twitter
statement admissible in criminal trials. State v Hannah
448 NJ Super. 78 (App. Div. 2016)
15. No
obstruction charge for failure to provide DL for parking ticket. State v
Powers 448 NJ Super. 69 (App. Div. 2016)
16. School Zone
map admissible if properly authenticated State v. Wilson 227 NJ 34 (2017)
17 Municipal Court can stay DL suspension
after DWI if appeal
State v. Robertson 228 NJ 138 (2017)
18. DNA on
towel not admissible without proper foundation and chain of custody
State v
Mauti 208 NJ 519 (2017)
19.
Defendant’s furtive movement after car stop justified removal of Passenger
State v. Bacome __ NJ __ (2017)
(A-9-15)
20. Plain feel search not permitted
with strip search for DP State v Evans 449 NJ Super. 66 (App. Div. 2017)
21 Dash cam video in fatal shooting public record
North Jersey Media Group, Inc. v. Township of Lyndhurst
__ NJ __ 2017 a-35-15
21. Errors by police in warrant and search held ok by court
State v Hamlett
22. Dash cam video in fatal shooting public record
North Jersey Media Group, Inc. v. Township of
Lyndhurst
23. Police
have duty to preserve video and evidence
State
v Richardson
24. Mandatory DNA samples in serious Municipal court
criminal
Effective July 1, 2017 person who pleads
guilty to cds and assault criminal disorderly criminal offenses must provide a
DNA sample upon a guilty plea.
25. New Criminal rules effective Jan 1, 2017
26. New Court Rule: The Committee
proposed two new rules to provide
limitations on the monetary sanctions
27 New Expungement Law
New law
effective April 18, 2016 for dismissed cases
This program
has been approved by the Board on Continuing Legal Education of the Supreme
Court of New Jersey for 2.0 hours of total CLE credit. Of these, 2.0 credits
qualify for certification in municipal court law.
See more
at:
https://www.facebook.com/events/1398826876901278
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