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State v. Cassidy

Supreme Court of New Jersey

November 13, 2018

State of New Jersey, Plaintiff-Appellant,
Eileen Cassidy, Defendant-Respondent.

          Remanded April 7, 2017

          Special Master Report May 4, 2018

          Argued September 12, 2018

          On appeal from the Spring Lake Municipal Court, Monmouth County.

          Robyn B. Mitchell, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Sarah C. Hunt and Sarah Lichter, Deputy Attorneys General, of counsel and on the briefs).

          Michael R. Hobbie argued the cause for respondent (Hobbie, Corrigan & Bertucio, attorneys; Michael R. Hobbie and Elyse S. Schindel, of counsel and on the briefs).

          Jeffrey E. Gold argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar Association, attorneys; John E. Keefe, Jr., President, of counsel and on the brief, and Jeffrey E. Gold, Arnold N. Fishman, and Miles S. Winder III, on the briefs).

          Matthew W. Reisig, participating attorney (Reisig Criminal Defense & DWI Law, attorneys; Matthew W. Reisig, of counsel and on the briefs, and Jeffrey Zajac, on the briefs).

          John Menzel, participating attorney (John Menzel, J.D., on the briefs).

          Evan M. Levow, participating attorney, submitted a brief (Levow DWI Law, attorneys).

          TIMPONE, J., writing for the Court.

         The Court considers the admissibility of breath test results produced by Alcotest machines not calibrated using a thermometer that produces temperature measurements traceable to the standards set by the National Institute of Standards and Technology (NIST).

         In 2000, the State began using the Alcotest, a product of Draeger Safety Diagnostics Inc. (Draeger), to conduct breath tests. The Alcotest machine analyzes breath samples, producing blood alcohol concentration readings used to determine whether a driver's blood alcohol content is above the legal limit. In 2004, Dr. Thomas A. Brettell developed the current calibration protocol while he was director of the State's Office of Forensic Sciences (OFS). In 2008, the Court found results from Alcotest machines calibrated pursuant to Dr. Brettel's protocol sufficiently reliable to be admissible in drunk-driving cases to establish a defendant's guilt or innocence for drunk driving. State v. Chun, 194 N.J. 54, 65 (2008). The Court also required that the devices be recalibrated semi-annually to help ensure accurate measurements. Id. at 153.

         During the calibration process, simulator solutions are heated to about 34 degrees Celsius, the generally accepted temperature for human breath. It is essential that the temperature of the solution be accurate in order for the Alcotest's blood alcohol content readings to be correct. The Alcotest's calibration procedure requires the test coordinator to insert a thermometer that produces NIST-traceable temperature measurements into the simulator solution used to calibrate the Alcotest and confirm that the calibration unit heated the solution to a temperature within 0.2 degrees of 34 degrees Celsius. When a thermometer's temperature measurements are "traceable" to the standard measurements of the NIST, those measurements are generally accepted as accurate by the scientific community. There are two other temperature probes used during the calibration procedure. Unlike the NIST-traceable thermometer, they are manufactured and calibrated by Draeger.

         Marc W. Dennis, a coordinator in the New Jersey State Police's Alcohol Drug Testing Unit, was tasked with performing the semi-annual calibrations on Alcotest instruments used in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. He is charged with neglecting to take required measurements and having falsely certified that he followed the calibration procedures. Dennis was indicted in 2016 for failing to use a NIST-traceable thermometer to measure the temperature of simulator solutions used to calibrate Alcotest devices. When Dennis was criminally charged, the Attorney General's Office notified the Administrative Office of the Courts that evidential breath samples from 20, 667 people were procured using Alcotest machines calibrated by Dennis.

         Defendant Eileen Cassidy, now deceased, pleaded guilty in municipal court to driving under the influence based solely on Alcotest results showing her blood alcohol level had exceeded the legal limit. Upon learning that the results of her test were among those called into question by Dennis's alleged falsifications, she moved to withdraw her guilty plea. The Attorney General moved for direct certification. The Court granted the motion and remanded the case to retired Appellate Division Presiding Judge Joseph F. Lisa as Special Master to determine whether "the failure to test the simulator solutions with the NIST-traceable digital thermometer before calibrating an Alcotest machine [would] undermine or call into question the scientific reliability of breath tests subsequently performed on the Alcotest machine." 230 N.J. 232, 232-33 (2017).

         After an extensive evidentiary hearing, the Special Master issued a 198-page report in which he concluded that failure to use a thermometer that produces NIST-traceable temperature readings in the calibration process undermines the reliability of the Alcotest and that the State failed to carry its burden of proving by clear and convincing evidence that the Alcotest was scientifically reliable without a NIST-traceable temperature check. The Special Master's report is appended to the Court's opinion.

         HELD: The Special Master's findings are supported by substantial credible evidence in the record, and the Court adopts them. Breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible.

         1. This case is justiciable despite defendant's passing. The Court will entertain a case that has become moot when the issue is of significant public importance and is likely to recur. The reliability and admissibility of thousands of breath samples, often used as the sole evidence to support a conviction, is of significant public importance, (pp. 9-10)

         2. Scientific test results are admissible in a criminal trial only when the technique is shown to be generally accepted as reliable within the relevant scientific community. Chun, 194 N.J. at 91. Although the Court recently adopted the factors identified in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95 (1993), and a methodology-based approach for determining scientific reliability in certain areas of civil law, the Court has not altered its adherence to the general acceptance test for reliability in criminal matters. The proponent of the technique has the burden to clearly establish general acceptance and may do so using (1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions. The party proffering the evidence need not show infallibility of the technique nor unanimity of its acceptance in the scientific community, (pp. 10-11)

         3. Of the State's witnesses, the Special Master found only the testimony of Dr. Brettell worthy of substantial weight; he found defendant's expert credible. The Court defers to and adopts the Special Master's detailed credibility findings, (p. 12)

         4. Based on the credible testimony, the Special Master determined that accurate temperature readings of the simulator solutions are "the foundation upon which the entire calibration process is built." The Special Master found NIST traceability "essential" to confidence in the Alcotest's results and that the two Draeger-manufactured probes were not NIST-traceable and were insufficient substitutes for the use of a NIST-traceable thermometer. The Special Master also found it particularly significant that the NIST-traceable thermometer was the only temperature measuring device used in the calibration process that was independent from the Alcotest and not manufactured and calibrated by Draeger. The Special Master found it "extremely important and persuasive" that current protocol treats the failure to achieve an in-range temperature reading using the NIST-traceable thermometer as an event of sufficient magnitude to abort a calibration. The Special Master reasoned that such facts clearly cut against the State's argument that the use of the thermometer is an unnecessary redundancy. Further, the Special Master rejected the State's theory that ten simultaneous failures would need to occur for the certainty of Alcotest results to be compromised, finding instead that the evidence showed that three relatively minor errors could cause undetected miscalibrations. The Special Master determined that the State had not shown that other states' practices revealed general acceptance of the reliability of Alcotest results without the use of a NIST-traceable thermometer. Because the Special Master's findings are supported by substantial credible evidence in the record, the Court adopts them. (pp. 13-17)

         5. Applying the general acceptance standard to the Special Master's findings, the Court holds that the State failed to carry its burden and affirms the Special Master's conclusion. Temperature measurements that are NIST-traceable are generally accepted as reliable by the scientific community. Part of that reliability lies in the fact that the level of uncertainty of each temperature measurement is known. The two Draeger-manufactured probes fail to meet the NIST's standards and the measure of uncertainty in their temperature readings is unknown. The Court does not accept the State's contention that the risk of miscalibration is infinitesimal due to the numerous other fail-safes in the calibration procedure. As Dr. Brettell testified, it was that very fear of a laboratory bias that led him to include the NIST-traceable thermometer in the calibration procedure, (pp. 18-19)

         6. 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. 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, the Court relaxes the five-year time bar, K 7:10-2(b)(2), in the interests of justice. The Court asks the Director of the Administrative Office of the Courts to monitor these ...

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