The State of New Jersey has begun implementation of a new breath test device which may eventually be used throughout the State of New Jersey to determine Blood Alcohol Content in DWI cases. The Alcotest 9510 is replacing the Alcotest 7110 breath test device which has been used in New Jersey DWI prosecutions since the New Jersey Supreme Court determined its scientific reliability fourteen years ago.
Breath testing is obviously crucial in DWI cases, as the State can prove alcohol intoxication by simply demonstrating a driver’s Blood Alcohol Content of .08%BAC or more. This is often referred to as a Per Se violation of the New Jersey DWI laws.
The problem with the new device is that it has not yet been determined to be scientifically reliable by any court in New Jersey. As this must be established before breath test results from the 9510 can be used in DWI prosecutions, all cases where this device has been used must be carefully evaluated to reflect these special circumstances.
Our office has challenged the State to demonstrate the scientific reliability of the new device in every case where it has been used in current DWI investigations. Consequently, we have asked all courts where these cases are pending to stay (suspend) proceedings until the Supreme Court has determined whether the new device can be relied upon to provide results that can be used in evidence against defendants charged with DWI. Certainly, breath test results cannot and should not even be considered before the Supreme Court has spoken. It appears this review process will take about a year based on previous experience with vetting the Alcotest 7110.