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Massachusetts and now New Jersey not using breath test evidence in DUI cases


Since August of this year, breath test evidence has not been used in Massachusetts as a result of discovery violations that occurred during the Alcotest 9510 litigation in the Concord District Court that was heard before Judge Brennan.  Now New Jersey, has also had an issue impacting breath test evidence Statewide.  New Jersey uses the same Breath test used in Massachusetts.

Nearly 20,000 DWI cases with breath test results are currently on hold in New Jersey after a State Police Sergeant was accused of incorrectly calibrating the breath test machines used in police departments across the state. The issue arose out of a lawsuit filed in federal court by a woman who was convicted in 2016 of DWI after blowing a breath test reading of .09.

The Attorney General’s office in New Jersey has charged Sergeant Marc Dennis with records tampering, arguing that he overlooked and incorrectly handled the Alcotest breath test machine in the 6-month recalibration of the machine. All of the Alcotest instruments produced and manufactured by Draeger Safety Diagnostics were required to undergo the said 6-month recalibration.

The judge, in this case, will have to determine whether or not the sergeant correctly tested the simulator solutions with the NIST-traceable digital thermometer before calibrating an Alcotest machine. Sergeant Dennis was accused, last year, of lying on official documents about completing all of the steps required to properly calibrate the breath test machines.

The State believes that there may be an issue with at least three of the breath test instruments; these instruments have been used in over 20,000 cases in a number of different counties across New Jersey. The Sergeant was allegedly observed skipping a step in the calibration process of the three mentioned machines. However, this raises concern for prosecutors on all of the machines the sergeant oversaw. The lawsuit itself seeks to include anyone whom may have taken a breath test from one of the machines calibrated by the sergeant, dating back to when he was hired in 2009.

Prosecutors in the county have begun mailing out letters to thousands of people charged with driving while intoxicated in New Jersey between the years of 2008 and 2016; in the letter, prosecutors mention that a judge will determine whether the individual’s case will be “entitled to relief” as a result of the misconduct by the sergeant. You can read more about the case and view some of the court documents related to the lawsuit here.

Sergeant Marc Dennis has denied any wrongdoing in the matter and has pleaded not guilty to all charges against him. Currently, he is facing charges including:

  • Second-degree official misconduct
  • Third-degree tampering with public records 
  • & Fourth-degree falsifying records

Massachusetts is facing a similar breath test situation; the breath test has not been used since August of 2017 in OUI cases.  Litigation began in 2014 which challenged the source code and the overall reliability of the 9510 breath test machine which is used in Massachusetts OUI cases. At DelSignore Law, we have had roughly 30 clients join in this litigation, and as a result, have had their breath test results excluded from evidence at trial.

If you have questions about the breathalyzer test and any pending litigation in Massachusetts, feel free to contact DelSignore Law today. We routinely handle OUI/ DUI cases where clients have both taken and refused the breath test. Each case is uniquely different and should be reviewed by a DelSignore Law attorney today. You can contact Attorney DelSignore today.

Visit our educational website today to learn more about the breath test, defenses to a failing breath test result, and how it can ultimately impact your case in court.

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