The lawsuit comes down to the accuracy of one number: a motorist’s blood alcohol content following a DUI stop. A federal class action suit is seeking to throw out the DUI convictions of more than 20,000 New Jersey drivers who may have been wrongly prosecuted because of botched calibrations on breathalyzer tests.
“The integrity of the whole system depends on those calibrations being done accurately,” said the attorney who filed the suit, Lisa Rodriguez.
The state attorney general’s office has charged State Police Sergeant Marc Dennis with records tampering, alleging he skipped a step when completing the biannual re-calibrations on the Alcotest devices used on drivers. Sergeant Dennis has denied the charges.
“So we challenged those convictions maintaining that those people were either triad and found guilty or plead guilty based on those Alcotest ratings, were deprived of their due process,” said Rodriguez.
Rodriguez filed the suit on behalf of an Ocean County woman who was convicted of a DUI last year based on a breathalyzer test of .09 percent. The legal limit in New Jersey is .08 percent. The machines were used throughout Monmouth, Ocean, Somerset, Union and Middlesex Counties since 2009.
“She’s seeking to have her conviction overturned,” Rodriguez said. “You know she’s already served her 3 month loss of license but there were substantial fines and penalties and so she’s seeking reimbursement of that.”
Marc Denbeaux a professor at Seton Hall Law School said, “So really what they ended up with was a system they could use that could never be tested.”
The case has even wider implications. When the state purchased the devices, Denbeaux says it entered into a special copyright contract that meant only the manufacturer had access to the codes that prove if the breathalyzers are working.
“It says to me this is a great trick. It means people are helpless when the police pull them over and police suspect they’ve been drinking and driving, and they may well have and have to deal with those consequences , but to have the state rely on a test that’s untestable is in fact simply offensive,” Denbeaux said.
Denbeaux’s team at Seton Hall Law’s Center for Policy and Research investigated the exclusive contract for the Alcotest devices after the state Supreme Court approved them for use. They found it forbid any independent scientific testing, in fact they couldn’t even purchase one for academic purposes.
“It’s a little like having a drug test in which someone says there’s cocaine in this material and they bring a witness in to say, yes it’s cocaine, how do you know? Well I used a test. How does that test work, how reliable is it? Sorry I can’t tell you,” said Denbeaux.
The state is also under the microscope for charges alleging that a forensic scientist at a state police lab falsely reported marijuana results used in thousands of cases. That was referenced in the DUI lawsuit. A spokesperson for the attorney general’s office says they couldn’t comment due to the ongoing investigation.