State v. Cassidy
| Decision Date | 13 November 2018 |
| Docket Number | 078390,A-58 September Term 2016 |
| Citation | 197 A.3d 86,235 N.J. 482 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Eileen CASSIDY, Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Robyn B. Mitchell, Deputy Attorney General, Trenton, 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, Eatontown, 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, Freehold, 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, Point Pleasant, participating attorney (John Menzel, J.D., on the briefs).
Evan M. Levow, Cherry Hill, participating attorney, submitted a brief (Levow DWI Law, attorneys).
The case before us concerns New Jersey law enforcement's use of the Alcotest 7110 MKIII-C (Alcotest) to obtain breath samples from drivers suspected of driving under the influence of alcohol. 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 2008, we found Alcotest results admissible in drunk-driving cases to establish a defendant's guilt or innocence for drunk driving. State v. Chun, 194 N.J. 54, 65, 943 A.2d 114 (2008). We also required that the devices be recalibrated semi-annually to help ensure accurate measurements. Id. at 153, 943 A.2d 114.
Confidence in the reliability of instruments of technology used as evidence is of paramount importance. Unfortunately, alleged human failings have cast doubt on the calibration process. 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 thermometer that produces temperature measurements traceable to the standards set by the National Institute of Standards and Technology (NIST) 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. We granted the motion because the central issue of this case is typical to the large number of defendants affected by Dennis's alleged misconduct. We 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, 166 A.3d 238 (2017).
On May 4, 2018, 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. We now adopt the Special Master's findings because they are supported by substantial credible evidence in the record, see Chun, 194 N.J. at 93, 943 A.2d 114, and we append his report to this opinion.
We briefly highlight the following facts from the record and commend a review of the Special Master's comprehensive report for the finer details. We rely heavily on the Special Master's report.
In 2000, the State began using the Alcotest, a product of Draeger Safety Diagnostics Inc. (Draeger), to conduct breath tests. In 2004, Dr. Thomas A. Brettell developed the current calibration protocol while he was director of the State's Office of Forensic Sciences (OFS), and we deemed the Alcotest sufficiently reliable as calibrated pursuant to Dr. Brettell's protocol. Chun, 194 N.J. at 148, 943 A.2d 114. As this Court ordered in Chun, N.J.A.C. 13:51-4.3(a) requires the semi-annual calibration of approved instruments used to test the alcohol content of breath samples. Id. at 153, 943 A.2d 114. The regulation, however, does not specify a calibration procedure.
During the calibration process, simulator solutions containing varying concentrations of ethanol are used to calibrate the Alcotest and confirm the accuracy of its blood alcohol content readings. The simulator solutions are poured into calibration units, which are glass containers that house a heating component. The calibration units heat the solutions to about 34 degrees Celsius, the generally accepted temperature for human breath, creating a vapor. The vapor is a proxy 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. The NIST is the federal agency responsible for maintaining and promoting consistent units of measurement. 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, both of those probes are manufactured and calibrated by Draeger. The first is the "black key probe," which plugs into the Alcotest device and allows the coordinator to access the calibration function. That probe is used to measure each simulator solution's temperature during a series of control tests. The second is the "agency's probe," which also plugs into the Alcotest and is used to measure the temperature of the simulator solution used in the final test to confirm that the Alcotest was calibrated correctly.
After the Special Master observed State Trooper David Klimik demonstrate an Alcotest calibration for him and heard testimony from five expert witnesses, including Dr. Brettell, the Special Master issued his report. In it the Special Master found 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. Infra at 622–23, 197 A.3d at 172. The Special Master stated the record "raise[d] substantial doubts about the scientific reliability of breath test results produced by Alcotest devices calibrated without the use of a NIST-traceable thermometer." Infra at 615, 197 A.3d at 168. He rejected the State's contention that the Alcotest itself contains so many redundancies and fail-safes that the use of a NIST-traceable thermometer is merely a supplementary check above and beyond the threshold of sufficient reliability. Infra at 617–18, 197 A.3d at 169. The Special Master determined that, without the NIST-traceable temperature measurement, the risk of undetected miscalibrations was "reasonably plausible" and would lead to "some number of undetected miscalibrations" among the roughly 1200 tests performed annually. Infra at 620–22, 197 A.3d at 171–72.
The State challenges the Special Master's findings, asserting that it met its burden of demonstrating by clear and convincing evidence that the Alcotest is generally accepted as reliable even when a NIST-traceable thermometer is not used in the calibration process. The State points to the testimony of Dr. Brettell that the black key probe and agency's probe are so comprehensive that the reliability of breath test results will not be reduced without the use of a NIST-traceable thermometer. It also highlights the fact that no other state using the Alcotest requires the use of a NIST-traceable thermometer in the calibration process. The State urges us to find that the Special Master held it to a standard far exceeding its evidentiary burden.
The State further asks this Court to reject the Special Master's findings that the black key and agency's probes' temperature readings are not NIST-traceable, arguing that question was not within the scope of the remand.
Defendant asks us to adopt the Special Master's findings and contends the use of a NIST-traceable thermometer is essential because miscalibrations leading to inaccurate breath test readings could otherwise occur. Defendant stresses that the black key and agency's temperature probes do not produce NIST-traceable temperature readings and...
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