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If you get pulled over on suspicion ofdriving under the influence (DUI), you might provide a breath sample. If the results are incriminating, you’ll be arrested, booked, and will probably faceDUI charges. From the perspective of a defendant, it seems like the evidence against you is incontrovertible, and is put in a drawer somewhere to be kept until your trial.
However, there’s far more to the story than that. And now the entire state of New Jersey is hearing about that story.
In nearby New Jersey, one police sergeant, Marc Dennis, has been recalibrating breathalyzer machines in five central New Jersey counties since 2008. Last year, Mr. Dennis’ supervisor discovered that he was skipping a crucial step in the recalibration process: He wasn’t making sure that the internal temperature of the machine was 100 degrees Fahrenheit before testing it. This was not a small mistake – if the machine is a different temperature, the chemical reactions that determine your breath alcohol content (BrAC) work differently, and produce imprecise results.
Worse, Mr. Dennis claimed to be performing this step on the paperwork associated with the recalibration. Other signs also suggested that he was deliberately skipping the recalibration step.
Mr. Dennis, a police officer, wascharged with tampering with public recordsin the third degree, and with falsifying records in the fourth degree.
It was unclear when Mr. Dennis had started improperly calibrating the machines. However, prosecutors in the five counties that used breathalyzers handled by Mr. Dennis made a surprising move: They decided to play it safe. They assumed that all of the DUI cases that used a breathalyzer that had ever been handled by Mr. Dennis were tainted. They notified all of the people in the five counties who had either been convicted for DUI or who had been charged but had not gone to trial yet –all 20,667 of them– that there were developments and that they could have their case reviewed.
This new case from New Jersey is similar to a pair of fiascos from Massachusetts: The discovery that there wasno actual policy for recalibrating breath testing machines, and the state chemist who tried making it seem like she was a better worker than others in the lab, and wasconvicted of tampering with evidence.
Altogether, these evidentiary problems highlight the scope of potential problems that can happen behind the scenes. Miscalibrated breath testing machines are primed to produce false positives even before they are used during a traffic stop, while tampering with evidence can happen at any point after it has been gathered.
William T. Bly is aDUI-defense attorneywho knows where to look for evidentiary problems like these. He also understands that law enforcement and prosecutors will not go out of their way to reveal these issues, making constant vigilance a necessity.
If you are facing criminal charges in Maine, the attorneys at The Maine Criminal Defense Group are here to help. Call our office to speak with
one of our team members, who will discuss your case with you and set up a consultation with one of our attorneys
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