State v. Cassidy, 235 N.J. 482 (2018). This unanimous opinion by Justice Timpone adopted the extensive opinion of a Special Master, retired Appellate Division Judge Lisa, on the subject of the validity of alcohol breath test results produced by Alcotest machines that are not calibrated using a National Institute of Standards and Technology (“NIST”)-traceable thermometer are not sufficiently reliable. The Court had assigned Judge Lisa to address that issue in 2017.
Defendant had pled guilty in municipal court to a driving while intoxicated charge. She did so based on breath test results from an Alcotest machine that showed her blood alcohol level to have exceeded the legal limit. But it was thereafter revealed that Marc W. Dennis, a coordinator in the Alcohol Drug Testing Unit of the New Jersey State Police who was responsible for performing semi-annual calibration tests on Alcotest machines in five major counties, had failed to use a NIST-traceable thermometer to take required measurements. Dennis also falsely certified that he had followed the required calibration procedures.
Dennis was indicted for that misconduct. The Attorney General’s office told the Administrative Office of the Courts that Alcotest machines calibrated (or, rather, miscalibrated) by Dennis had produced 20,667 breath samples.
Learning that her breath test results were among those affected by Dennis’s actions, defendant then sought to withdraw her guilty plea. The State sought, and the Supreme Court granted, direct certification and remanded the matter for Judge Lisa to handle. He produced a 198-page report concluding that Alcotest machines not calibrated using a NIST-traceable thermometer were not sufficiently reliable, and that the State had not shown the contrary by clear and convincing evidence. The Supreme Court adopted Judge Lisa’s opinion, appending it to the Court’s own ruling.
Defendant had died while proceedings were ongoing. But the Court found the matter justiciable, and not moot, despite that. The issue was one of significant public importance and was likely to recur, given that it affected over 20,000 other cases.
Justice Timpone also observed that the State had the heavy burden of showing that Alcotest results from machines not calibrated using a NIST-traceable thermometer met the “general acceptance” test for expert testimony. Though the Court had noted in In re Accutane Litigation, 234 N.J. 340 (2018), discussed here [Disclosure: I was one of the counsel who argued the Accutane case for plaintiffs], that a more relaxed standard of proof applied to expert testimony in certain types of civil cases, that decision did not alter the rule that the “general acceptance” test governed in criminal matters.
The State did not satisfy that test. The Supreme Court deferred to Judge Lisa’s evaluation of the credibility of the respective experts in the case.
The Court invoked original jurisdiction and vacated defendant’s conviction. The Justices also directed the State to notify all affected defendants of this decision and allow affected defendants in cases already decided to seek appropriate relief. It is to be determined how other cases are to proceed. But this decision is unquestionably impactful in thousands of cases besides that of the deceased defendant here.
I have deliberately not attempted to discuss the science underlying this case and Judge Lisa’s and Justice Timpone’s opinion. Those involved in this area of the law would be well-advised to read those opinions in full.