On November 28, 2017, Judge Lisa of the Appellate Division issued an order that affects most anyone accused of a second offense or greater DUI in New Jersey. In every case and every DUI sentence anywhere in the state, the prosecutor must ascertain whether that prior conviction had a reading that was calibrated by former New Jersey State Police Sergeant Marc Dennis. The prosecutor must provide the calibration signature as proof.
Sergeant Dennis is under indictment for official misconduct related to his falsifying Alcotest machine calibrations. Note that it is not enough for a prosecutor to surmise that Sergeant Dennis was not involved in a case because his routine assignment was somewhere else.
The Court’s order reads:
This matter being opened on the court’s own initiative and being entered, after notice to all parties, as a supplement to the November 2, 2017 order of this court staying certain proceedings in other courts, to effectively identify cases in which breath samples were provided on an Alcotest device calibrated by New Jersey State Police coordinator Marc Dennis, to which the November 2, 2017 stay order applies,
It is on this 28th day of November 2017, ORDERED AS
FOLLOWS:
- In any proceeding in any court involving a prosecution, conviction or sentence for a DWI offense for which the offense date was between January 1, 2008 and September 30, 2016, it shall be the affirmative obligation of the prosecutor in that proceeding to determine whether the defendant provided a breath sample on an Alcotest device that had been calibrated by coordinator Marc Dennis, and to produce documentary evidence of that determination to the defendant and the court;
- In any proceeding in any court involving a prosecution for an offense in which a prior DWI conviction constitutes a predicate offense to enhance the gradation or applicable punishment in that subsequent prosecution for another charge, or involving a sentence emanating from such a case that has been adjudicated, it shall be the affirmative obligation of the prosecutor in that proceeding to determine whether or not the defendant provided a breath sample on an Alcotest device that had been calibrated by coordinator Marc Dennis in that prior DWI case, and to produce documentary evidence of that determination to the defendant and the court.
IT IS FURTHER ORDERED that the Attorney General shall forthwith provide a copy of this order to all county and municipal prosecutors.