STATE OF DWI DEFENSE
SUMMER 2026
This summer has been a busy one in defending drivers charged with driving while intoxicated in New Jersey. As an attorney represents clients in courts around the State, we have a unique opportunity to update what is now happening in defending DWI complaints.
No Approval New Device
The most significant issue involves the ongoing failure of the State to obtain approval for its new breath test device, which it has placed into service throughout the State over the past four years. Essentially, no Court has determined that the new device, the Alcotest 9510, accurately measures a driver’s blood alcohol content. Obviously, no breath testing device should be relied upon to determine innocence or guilt before the device has been determined by a court to be scientifically reliable.
Because of this status, breath test results are, for the most part, not being used to determine innocence or guilt in New Jersey DWI prosecutions. Of course, the State can still attempt to demonstrate intoxication based on “observations” of the driver’s vehicle operation, speech, manual dexterity, admissions of consumption, field sobriety tests, ability to follow instructions, walk, stand and orientation as to time and place. Interestingly, while not admissible in evidence, many Prosecutors are influenced by 9510 breath test results in determining their negotiating position when plea bargaining DWI cases.
The Results of No Approval
The failure to approve the new device has also created a backlog in disposing DWI cases. This in turn, has influenced Prosecutors to resolve cases through plea bargaining. The attorney’s understanding of this and their ability to persuade to achieve a client’s goal becomes crucial in defending a DWI complaint.
At the same time, Courts are dealing with new laws which allow drivers to avoid suspension of driving privileges, even for third and subsequent offenses, with instillation of an ignition interlock device. These laws allow for credit against each day of suspension with every two days of interlock installation. Pre-conviction IID installation can also cause DWI fines to be waived and the length of suspension shortened.
Some courts however, are not willing to give credit for IID pre-installation and waive fines, notwithstanding the language of the law. Our office along with other attorneys are working to clarify the law, correcting any lack of clarity which may be claimed.
It’s been a busy summer indeed.