Note that the effect of Judge Lisa’s Order is not limited to municipal court DUI cases. The use of a device calibrated by Sergeant Dennis can also affect the viability of a subsequent prosecution under N.J.S.A. 2C:40-26 “Operating Motor Vehicle During Period of License Suspension.” That is a fourth-degree felony handled at the superior court level.
Judge Grant of the Appellate Division issued a related Memo to all Municipal Court Judges on Cassidy stays and burdens that reads as follows:
The Supreme Court granted direct certification in the matter of State v. Eileen Cassidy pursuant to Rule 2:12-1. On April 6, 2017, the Court appointed Appellate Division Judge Joseph D. Lisa, Retired on Recall, as Special Master. The Court directed Judge Lisa to determine whether the failure of New Jersey State Police Sergeant Marc Dennis to test the simulator solutions with the NIST-traceable digital thermometer before calibrating an Alcotest machine (breath-testing device) undermines or calls into question the scientific reliability of breath tests subsequently performed on the Alcotest machine. The Alcotest machines calibrated by Sergeant Dennis during his tenure with the State Police were used in over 20,000 DWI prosecutions. Although most of these cases were filed in five counties (Middlesex, Monmouth, Ocean, Somerset and Union Counties), there have been cases in twelve counties total.
On November 2, 2017, Judge Lisa issued an Order (attached) requiring a stay in all open DWI cases where the Alcotest reading was taken using a machine serviced by Sergeant Dennis (“Dennis” cases). That same order provides that a stay is also to be granted, unless the defendant expressly waives his or her right to the stay, on any new case (e.g., new DWI, refusal or driving while suspended charge) where an original “Dennis” DWI conviction constitutes a predicate offense to enhance the gradation or applicable punishment in that subsequent proceeding. Finally, judges handling these cases have the discretion to stay outstanding sentence provisions pending the Supreme Court’s ultimate decision in State v. Cassidy.
Additionally, on November 28, Judge Lisa issued a Supplemental Order (attached) providing that the burden for determining whether the defendant provided a breath sample on an Alcotest device calibrated by Sergeant Dennis rests with the prosecutor handling the case. The prosecutor is also required to produce and provide documentary evidence of that determination to the defendant and the court. Further, in any proceeding in any court involving a prosecution for an offense in which a prior “Dennis” DWI conviction constitutes a predicate offense that can enhance the gradation or applicable punishment in that new case, or involving a sentence emanating from such a case that has been adjudicated, the burden rests with the prosecutor to determine whether or not the defendant provided a breath sample on an Alcotest device calibrated by Sergeant Dennis in that prior DWI case, and to produce documentary evidence of that determination to the defendant and the court.