In State v. Zingis, ___ N.J. ___ (2024), the New Jersey Supreme Court addressed the outstanding issues arising from the notification procedure required after its decision in State v. Cassidy, 235 N.J. 482, 486 (2018). In State v. Cassidy, 235 N.J. at 486, the Supreme Court determined that breath test results produced by Alcotest machines which were not calibrated using a National Institute of Standards and Technology (NIST) traceable thermometer, by then-Sergeant Marc Dennis, coordinator in the New Jersey State Police’s Alcohol Drug Testing Unit, were inadmissible, calling into question over 20,000 Alcotest results. The Court in Cassidy ordered the State to notify all affected defendants of its decision.

In August 2018, the defendant Thomas Zingis was charged with careless driving and driving while under the influence (DWI). State v. Zingis, ___ N.J. at ___ (slip op. at 3). Zingis had a prior April 2012 DWI conviction in Camden County. Ibid. He was found guilty of DUI in December 2018. Ibid. The State requested that Zingis be sentenced as a second offender due to his prior DWI conviction. Ibid. Relying on the Court’s decision in Cassidy, Zingis argued that his 2012 DWI conviction should be disregarded for sentencing purposes because the State failed to prove beyond a reasonable doubt that it was not predicated on inadmissible Dennis-calibrated Alcotest. Id. at ___ (slip op. at 3-4).

The State asserted that (1) Camden was not one of the Dennis-affected counties, and (2) Zingis’s failure to receive notice, consistent with the Court’s order in Cassidy, was proof that he was not a Dennis-affected defendant. Id. at ___ (slip op. at 4).

The municipal court accepted the State’s representation and sentenced Zingis as a second DWI offender. Ibid. Following a trial de novo, the Law Division similarly found Zingis guilty of DWI and rejected his request to be sentenced as a first-time offender. Ibid.

The Appellate Division affirmed the conviction but vacated the enhanced sentence finding that the State had failed to prove beyond a reasonable doubt that Zingis’s 2012 DWI conviction was not based on an inadmissible Alcohol Influence Report (AIR). Id. at ___ (slip op. at 5).

The Supreme Court granted certification and remanded the matter to a Special Adjudicator for a plenary hearing to decide two questions: (1) which counties were affected by Dennis’s conduct, and (2) what notification was provided to the defendants affected by Dennis’s conduct. Id. at ___ (slip op, at 6-7).

The Special Adjudicator filed a comprehensive 370-page report, finding among other things, that the State had not fully provided the ordered notification to all defendants affected by the Court’s decision in Cassidy, and suggested possible solutions for providing such notice. Id. at ___ (slip op. at 8).

The Supreme Court addressed two conclusions by the Special Adjudicator over which the parties had remaining concerns: (1) the proper procedure for challenging a prior Dennis-affected DWI conviction when facing enhanced sentencing on a subsequent DWI; and (2) the appropriate availability of Exhibit S-152. Id. at ___ (slip op. at 9).

The Supreme Court ordered that during the initial conference for a DWI matter, the court shall inquire whether the pending matter represents the first or subsequent DWI for a defendant. If the record reflects that the defendant has a prior conviction for DWI, the prosecutor must inform the court, defendant, and defense counsel whether it occurred between the critical dates of November 5, 2008 and April 2016, when the Alcotest was improperly calibrated–information readily available to the State in the defendant’s abstract. Id. at ___ (slip op. at 19). If so, the “court must then schedule a discovery conference for the State to fulfill its obligation and provide to the defendant and counsel, as well as the court, discovery indicating whether the defendant is a Dennis-affected defendant.” Ibid.

Discovery is to be conducted by the prosecutor by using the summons number from the earlier DWI offense to search Exhibit S-152. Id. at ___ (slip op. at 20). If the State determines that the defendant’s prior offense involved a Dennis-affected Alcotest Instrument that produced an evidential BAC reading, corroborated by Exhibit S-152 and the Dennis AIR Summary sheet, judges should afford the defendant a reasonable amount of time to decide whether to challenge the prior conviction by filing for PCR in the jurisdiction of the previous conviction. Id. at ___ (slip op. at 22).

If it is determined that the defendant’s prior DWI conviction did not involve a Dennis-calibrated Alcotest, then the defense is still provided their copy of the one row of complete data from Exhibit S-152, along with the Dennis AIR Summary sheets, and the confirming prior disposition revealing the summons number for the defendant’s prior DWI conviction. The matter then proceeds in the normal course, and the defendant may face enhanced sentencing based on the prior DWI. Id. at ___ (slip op. at 21).

The Supreme Court affirmed the judgment of the Appellate Division as to vacating the sentence, and remanded the matter to the municipal court to afford Zingis the benefit of the discovery process outlined above. Id. at ___ (slip op. at 25).

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