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.
