N.J. Breathalyzers Were Knowingly Miscalibrated, Class Action Says

A class action lawsuit claims the New Jersey State Police fraudulently certified its breathalyzers, leading to wrongful DWI prosecutions.

Plaintiff Ashley Ortiz alleges the NJSP have been fabricating evidence relevant to the maintenance and certification of its Alcotest 7110 MKIII-C breathalyzers.

Ortiz claims the defendants rely on this evidence in the course of prosecuting people for drunk driving, violating their constitutional right to due process.

Alcotest breathalyzers have been endorsed by the N.J. Supreme Court to produce reliable and legally admissible test results.

However, they must be initially calibrated correctly, then repeatedly recalibrated after that, Ortiz says. Miscalibration can lead to inaccurate test results.

That places a lot of power into the hands of the NJSP’s Alcohol Drug Testing Unit, the unit charged with inspecting, calibrating and certifying all the state’s Alcotest breathalyzers, the class action states.

Defendant Marc Dennis was a coordinator for the Alcohol Drug Testing Unit, and as such he was responsible for calibrating breathalyzers and certifying their accuracy.

According to Ortiz’s Alcotest breathalyzer class action lawsuit, Dennis “willfully, intentionally, and repeatedly failed to comply” with procedural safeguards designed to ensure accurate test results.

Dennis has already been the subject of criminal prosecutions for allegedly falsely certifying that he had properly performed calibration checks on various Alcotest breathalyzers, Ortiz claims.

Under New Jersey law, a driver’s intoxication is determined solely by the driver’s blood alcohol content. Ortiz says that many DWI suspects who test over the legal intoxication limit assume they have no defense to the test results and are compelled to plead guilty.

That compulsion is based on the assumption that the breathalyzers used to get the test results are properly calibrated to give accurate test results, Ortiz says.

Ortiz argues that many DWI prosecutions were initiated based on the results of Dennis’s falsely calibrated and certified breathalyzers. She accuses the NJSP and several of its administrators of failing to disclose Dennis’s fabrication of evidence until only last month.

Ortiz says she was prosecuted for DWI in August 2015 based on test results from an Alcotest breathalyzer calibrated and certified by Dennis. In reliance on the Alcotest results, she pled guilty, giving up her driver’s license for three months and paying fees and surcharges.

Ortiz proposes to represent a plaintiff Class consisting of all persons arrested in New Jersey from 2009 through at least Sept. 19, 2016. She estimates this definition could encompass more than 20,000 Class Members – roughly, the number of persons tested on machines calibrated by Dennis.

She seeks an award of damages and a refund of all fines and surcharges paid by each Class Member in connection with their prosecutions.

The plaintiff also seeks court orders requiring cessation of DWI prosecutions based on test results from machines calibrated or certified by defendant Dennis, immediate recalibration of all Alcotest breathalyzers, and expungement of the Class Member’s DWI prosecutions from criminal records and the records of the state Division of Motor Vehicles.

Ortiz is represented by attorneys Lisa J. Rodriguez and Ben C. Fabens-Lassen of Schnader Harrison Segal & Lewis LLP and Michael J. DiBenedictis of DeBenedictis & DeBenedictis LLC.

The New Jersey State Police DWI Falsified Evidence Class Action Lawsuit is Ortiz v. New Jersey State Police, et al., Case No. 3:16-cv-07976, in the U.S. District Court for the District of New Jersey.