Uncertain Times
These are uncertain times for prosecution and resolution of DWI cases. Never over the course my career prosecuting and then defending drivers charged with DWI, has so much uncertainty existed in the field of DWI law. These circumstances make it more important than ever to understand the difference between legal argument and achieving a client’s goals by persuasion.
In a case which will be the most important DWI case for the next twenty years, the New Jersey Supreme Court and defense bar are at a standoff over the issue of how funds will be available for defense expert testimony. In State v. Cunningham, the Court will be determining whether a new breath test device, the Alcotest 9510, is scientifically reliable to the extent that test breath results can be used to determine per se guilt of intoxication. Since the State began implementing the 9510 program (before it was approved), pending cases have been stayed to allow the Court to make its determination. In the meantime, however, DWI cases in NJ involving breath testing have been in a limbo, with an ever-increasing backlog. This status has and will continue to put pressure on courts and prosecutors who must ultimately resolve this backlog along with the usual additional new cases. Prosecutors might be motivated to negotiate better resolutions for our clients because of these circumstances.
State v. Zingis
In another recent NJ Supreme Court decision, State v. Zingis, a procedure was established to identify cases involving prior convictions where breath tests had been conducted on a device which had not been properly inspected. It seems prosecutors and courts are neglecting to follow the Zingis Court’s directions to identify these tests. Consequently, prosecutors may be finding themselves compromised because of their failure to follow the Court’s directive. This again may provide the defense with opportunities to persuade the State to achieve their desired result.
NJ Legislative Changes
The New Jersey legislature has recently amended the DWI law to allow for continued vehicle operation even after conviction for a second, third or subsequent DWI, with installation of an ignition interlock device. Implementing these changes however, has been difficult because of confusing language in this legislation. Even more opportunities for defense counsel will arise because of this confusion.
DRE Procedures
Even more challenging has been yet another recent decision by our Supreme Court regarding the use of Drug Recognition Evaluation techniques where the State claims a driver operated their vehicle under the influence of a drug/substance other than alcohol. In State v Olenowski, the Court questioned the reliability of DRE procedures in providing useful information regarding a driver’s intoxication from something other than alcohol. It focused on the difference between DRE evaluations based upon observations such as, “bloodshot watery eyes” which might be “consistent with” drug intoxication but could not be determined as being “caused” by the drug. Stated otherwise, “blood shot watery eyes” and similar observations, while possibly being “consistent” with drug use, cannot be shown to have been caused by the substance use. That observation then, would be of little use in determining whether the driver was operating their vehicle under the influence of the substance.
Consequently, DWI prosecutions based upon DRE evaluations have become less successful. In fact, it appears many prosecutors are no longer willing to take these matters to trial because of proof problems.
Reasonable and articulable?
Even more importantly, DWI attorneys should be able to argue that the same analysis should apply to the similar observations commonly relied upon to establish the reasonable and articulable suspicion needed to Constitutionally justify performance of field sobriety tests, probable cause of intoxication justifying arrests and ultimate determinations of intoxication at trial when alcohol has been consumed.
An attorney who is both aware of these issues and understands the principles of persuasion, now has greater opportunities to achieve their client’s goals in a DWI case.
Peter Lederman addressed this topic at the Meadowlands Meeting of the New Jersey Association for Justice (previously known as The Trial Lawyers Association) on Friday, November 21st, 2026.