Call Today for a FREE Consultation

262-923-8761

24 HOUR EMERGENCY CONTACT

High court ruling puts over 20,000 New Jersey DUIs in question

| Nov 19, 2018 | Criminal Appeals

According to constitutional principles, when the government acts illegally during a criminal case, it is not allowed any benefit from its illegal actions. This is the basis of the exclusionary rule, which prohibits the use of evidence that was obtained illegally, such as through an improper search. However, the rule is not limited to evidence obtained through unlawful searches.

Recently, the New Jersey Supreme Court issued a unanimous ruling that could affect tens of thousands of DUI and DWI convictions in that state. In 2016, a former coordinator at the New Jersey State Police’s Drug Alcohol Testing Unit was indicted for failing to perform the twice-yearly calibration of the Alcotest-brand breath testing machines he was responsible for, yet certifying that he had done so.

After a woman appealed her DWI conviction, a special court master examined the reliability of the tests when the calibrations have not been done. It found that the lack of calibration completely undermined the test results. Therefore, the court ruled that the uncalibrated test results are inadmissible as evidence. That could mean major changes for the 20,667 people affected.

The court ordered the state to notify all those convicted using the tainted test results that their cases are affected. It also lifted the five-year limit for such appeals because the state waited approximately a year to begin notifying the defendants.

Defendants with affected convictions will now need to file motions to have their test results excluded in their cases. What happens then will depend on the other evidence in the case, if any.

Where there is no additional evidence of the defendant’s alleged intoxication, the cases will probably be dismissed. However, the police officer’s observations are considered evidence, so there may be relatively few cases where there is no additional evidence available.

The practical effect, according to the New Jersey Attorney General’s Office, is that many of the tainted cases will be renegotiated with defense attorneys. That could lead to dismissal or to a reduction of the charges to reckless driving, for example.

This situation matters to us in Wisconsin and around the country because it points out how a single bad apple in a testing facility can bring about potentially thousands of wrongful criminal convictions. It also shows how important it is for scientific tests to be performed correctly, by trained personnel, on properly calibrated machines — or it simply isn’t reliable enough to be used as evidence.

Archives

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)