Court: Some Alcohol Breath Tests Inadmissable As Evidence

File Photo

She didn’t live to see her case settled, but her fight may now benefit 20,667 people whose Alcotests may have falsely tested positive.

After learning that the equipment for her breath test was not properly calibrated, Eileen Cassidy, who pleaded guilty in Spring Lake municipal court on Sept. 8, 2016 solely based on that test showing her driving above the legal limit, sought to have her guilty plea withdrawn.

The Alcotests were supposed to be calibrated twice a year using a rigorous process to ensure their accuracy. Marc W. Dennis, a coordinator in the New Jersey State Police’s Alcohol Drug Testing Unit, performed those semi-annual calibrations for tests used in Ocean, Monmouth, Middlesex, Somerset and Union counties. The tests should have been calibrated using a thermometer that produces temperature measurements traceable to the standards set by the National Institute of Standards and Technology.

Dennis was indicted back in December 2016 (and was charged Sept. 19) for not properly calibrating the tests and falsifying his reports “as if he has properly performed the procedure,” the indictment said. The State reportedly knew about the issue with the falsification of records nearly a year before defendants, including Cassidy, were notified.

She sought to have her guilty plea vacated Sept. 26, 2016.

“The Court orders the State to notify all affected defendants of its decision that breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible and commends to the State that it require the manual recording of the NIST traceable readings going forward,” stated the Nov. 13 decision, written by Justice Walter F. Timpone. “Further, the Court lifts the stay on all pending cases so that deliberations may commence on whether and how those cases should proceed. For those cases already decided, affected defendants may now seek appropriate relief. Because the State waited approximately a year to notify the affected defendants, we relax the five-year time bar, R. 7:10-2(b)(2), in the interests of justice. We ask the Director of the Administrative Office of the Courts to monitor these cases and recommend how best to administer them in the event any special measures are needed.”

Cassidy died in March 2018. Her case was argued in September and decided Tuesday.

“Finally, as to defendant Cassidy, we exercise our original jurisdiction and vacate her conviction,” Timpone wrote.