Late this afternoon, the Supreme Court announced that it has granted direct certification in State v. Cunningham. The question presented, as phrased by the Supreme Court Clerk’s office, is “Are the results from the Alcotest 9510 sufficiently reliable to be admissible in driving while intoxicated (DWI) cases to establish a defendant’s guilt or innocence for DWI?”
As detailed in the Court’s order, available here, this case follows on the Court’s ruling in State v. Chun, 194 N.J. 54 (2008), that the Alcotest 7110 MKIII-C breath test machine was sufficiently reliable to be admissible in DWI cases. But the manufacturer of that device has stopped manufacturing it, and since certain replacement parts for that device are unavailable, the State has been using the Alcotest 9510, a new device, in its stead.
The Court has ordered that Judge Geiger, who currently sits in the Appellate Division but who will reach retirement age this summer, act as a Special Master “to develop a record, conduct hearings, and make findings and conclusions regarding the scientific reliability of the Alcotest 9510, which proceedings shall be scheduled on an accelerated basis.” Judge Geiger is to file a written report with the Supreme Court, which will then hear oral argument on the issue.
During the remand proceedings and pending a ruling by the Court, “DWI prosecutions and appeals based exclusively on the use of an Alcotest 9510 device (i.e., without other clinical or objective observational evidence), are stayed unless otherwise provided” in the order, as are “all requests for a reliability hearing in respect of Alcotest 9510 devices.” The State may, however, proceed in the normal course with DWI prosecutions that do not include Alcotest 9510 results.
This will be a major case in the area of DWI. Stay tuned, but be patient, as it will be awhile before proceedings before Judge Geiger are concluded. The Supreme Court implicitly recognized that by requiring that Judge Geiger “provide to the Court a written update on the remand proceeding every ninety (90) days until the remand proceedings have concluded.”