4 UNCHECK MURRAY

Thousands of DWI convictions in New Jersey could be challenged after a State Police sergeant was criminally charged for skipping a legally required step in calibrating breath-testing devices.

(File photo)

TRENTON -- DWI lawyers across New Jersey are sorting through a thicket of more than 20,000 drunken driving cases potentially undermined by a State Police sergeant accused of falsifying records.

Sgt. Marc Dennis, a coordinator in the State Police Alcohol Drug Testing Unit, was criminally charged in September after a supervisor reported the sergeant had skipped a legally required step in re-calibrating three breath-testing devices used by local police to check the blood-alcohol level of accused drunken drivers.

Dennis allegedly signed certifications claiming he had performed the mandatory step, records show. Such documents are used in court to prove the accuracy of blood-alcohol readings.

Robert Ebberup, an attorney for the sergeant, said his client was not guilty.

Since the issue came to light, state authorities have requested a special judge be appointed to handle an expected glut of challenges to seven years' worth of DWI convictions tied to the officer.

Meanwhile, a Camden County attorney has filed a federal class action lawsuit on behalf of defendants who were convicted based on test results from machines Dennis maintained.

The controversy comes as another State Police lab in charge of testing drug evidence is under scrutiny after one of its technicians was accused of falsifying test results in a marijuana case, bringing more than 15,000 drug convictions into question.

Records obtained by NJ Advance Media show prosecutors are now working with the state court system to figure out how to handle an even larger problem, with as many as 20,667 individual cases across five counties affected by the criminal case against the sergeant.

Dennis was accused of foregoing a preliminary temperature check required under state Supreme Court rules regarding the calibration of the machines approved for breath-testing in New Jersey, known as Alcotest devices.

Officials from the state Division of Criminal Justice, which brought the charges against Dennis, said in correspondence obtained through a public records request that the temperature check -- while legally required under a decision known as State v. Chun -- is not scientifically necessary.

But DWI lawyers interviewed by NJ Advance Media say the sergeant allegedly passed over a crucial step meant to ensure citizens aren't convicted of drunken driving based on a faulty machine reading.

"The science upon which the state obtained approval for the Alcotest device relies on proper calibration," said Christopher Baxter, a former municipal prosecutor who now represents clients accused of DWI. "Without proper calibration, the science behind the device's accuracy falls apart."

New Jersey's DWI laws are unique in that drunken driving is considered a motor vehicle offense rather than a criminal one, but the penalties for a DWI conviction can be steep.

And importantly, those penalties can hinge on the level of intoxication gauged by an Alcotest device.

For example, the threshold for driving under the influence in New Jersey is a blood-alcohol level of .08 percent, but tougher sanctions kick in for a driver who blows a .1 percent, making the pin-point accuracy of so-called breathalyzer devices key for sentencing.

That, DWI lawyers say, is where human oversight is vital.

"Coordinators (like Dennis) are very important, and it's about all the citizen has to say the machine is working," said Jeff Gold, a DWI lawyer who represented the New Jersey State Bar Association in the landmark Supreme Court decision that established the rules for breath-testing. "Otherwise it's a robot. That calibration is necessary, and small differences matter."

The State Police unit Dennis belonged to is in charge of performing periodic calibrations of machines used by local police departments to make sure they were taking accurate readings. Dennis personally tested machines in in Middlesex, Monmouth, Ocean, Somerset and Union counties, records show.

The accusations against the sergeant may bring the accuracy of any device under his supervision into question, some lawyers say.

Already, challenges are piling up.

In an October 17 filing, Division of Criminal Justice Director Elie Honig wrote to the justices of the state Supreme Court regarding the case of a New Jersey woman who pleaded guilty to drunken driving charges in Spring Lake municipal court.

The woman is seeking to withdraw her plea "on the grounds that Dennis calibrated the Alcotest instrument on which she provided a breath sample," Honig wrote.

The state prosecutor wrote that his office expected "many additional legal challenges will be filed regarding breath test results from Alcotest instruments that were calibrated by Dennis."

Later that month, a Cherry Hill attorney, Lisa J. Rodriguez, filed a civil class-action lawsuit on behalf of an Ocean County resident, Ashley Ortiz, who was convicted of drunken driving in Wall Township last year. According to court records, Ortiz was initially pulled over for having a busted light above her license plate, but subjected to a field sobriety test when the officer detected the smell of alcohol.

An Alcotest later showed she had a blood-alcohol content of .09 percent, records show.

In a complaint filed in U.S. District Court in Trenton, Rodriguez wrote that those accused of drunken driving, faced with the results of an Alcotest, "have little choice but to plead guilty" mainly because such results are considered "indisputably accurate."

The suit seeks civil damages on behalf of potentially thousands of people convicted based on results from machines Dennis calibrated.

The universe of DWI cases possibly affected by the criminal case against Dennis may be large, prosecutors and defense attorneys say, but the number of those who will successfully overturn their convictions based on the scandal is likely far lower.

For one, Dennis was accused of skipping the temperature check while recalibrating just three devices, which were used in two DWI cases before being taken out of service. So while the charges bring into question any device he handled, it's unclear whether the accusations amount to a few isolated cases or a systemic problem.

Additionally, drunken driving is a unique offense in that some convictions don't require objective testing at all. An officer's assertion, based on observations of a driver's behavior and the results of a field sobriety test, can be enough to convict.

The Dennis case has echoes of another State Police scandal made public this year.

In late December, Kamalkant Shah, a lab technician at the State Police North Regional Laboratory in Little Falls, was accused of faking a test result in a single marijuana case. The disclosure brought some 14,800 cases involving evidence Shah either tested or performed peer review on into question.

A criminal investigation in that case is ongoing.

A Superior Court judge was appointed as a "special master" to consolidate the glut of challenges to criminal convictions in the drug lab case. The state Attorney General's Office has made a similar request in the Dennis case, which is still pending before the Supreme Court.

In the Shah case, authorities re-tested many of the drug samples to confirm they were, in fact, banned substances. In a June certification, an assistant attorney general said they had yet to identify a case where a drug defendant was behind bars because of a faulty test result.

But Baxter, the DWI lawyer, said the evidence against his clients is often more ephemeral than crumbs of marijuana or a bag of cocaine.

"With (the drug lab case), the state's reaction is, 'If we still have the evidence, we'll retest it,'" Baxter said. "When you give a breath sample, it's gone when you walk out of the station. They can't re-test it."

S.P. Sullivan may be reached at ssullivan@njadvancemedia.com. Follow him on Twitter. Find NJ.com on Facebook.