Cunningham withdrawal from challenge to new DWI Alcotest machine 9510 rendered dismissal of pending case.
NJ Supreme Court
SUPREME COURT OF NEW JERSEY
A-38 September Term 2022
087913
State of New Jersey,
Plaintiff,
v.
Colleen A. Cunningham,
Defendant-Movant.
O R D E R
This matter was first opened to the Court in January 2023 on the State’s
motions for various forms of relief, including to directly certify nine separate
prosecutions pending in municipal court for driving while intoxicated (DWI).
In each of the matters, the defendants had challenged the scientific reliability
of evidential breath samples generated by the Alcotest 9510, a replacement for the Alcotest 7110 MKIII-C. The Court previously found the earlier model
sufficiently reliable to be admissible as evidence in DWI cases. See State v.
Chun, 194 N.J. 54, 65 (2008).
On May 1, 2023, the Court directly certified the matter involving only
defendant Colleen Cunningham, not the other eight matters. The Court also
appointed Judge Richard J. Geiger, J.A.D., to serve as a Special Adjudicator
“to develop a record, conduct hearings, and make findings and conclusions
FILED, Clerk of the Supreme Court, 19 Dec 2025, 087913
regarding the scientific reliability of the Alcotest 9510.”
Importantly, also on May 1, 2023, the Court imposed a limited stay of
DWI matters that involved the use of Alcotest 9510 machines, subject to
certain conditions.
The Court directed that remand proceedings be conducted on an
accelerated basis. At all times, Judge Geiger has conducted them with due
pace and diligence, notwithstanding repeated delays.
Since the Court imposed a stay, numerous motions have prevented the
remand from proceeding apace. Most involved the issue of who would pay for
defense experts and the costs of transcripts for the remand proceedings:
On July 28, 2023, defendant filed a motion with Judge Geiger to
have the State pay the cost of defense experts and daily transcripts.
Defendant argued that the Court has directed the provision of
financial assistance to defendants “who could not otherwise afford
legal services in defense of their case.” Defendant analogized her
circumstances to State v. Cassidy, 235 N.J. 482 (2018), in which
the Court granted an indigent defendant’s motion to compel the
State to pay the costs of defense experts. Defendant noted that
here, as in Cassidy, it was the State that sought a global resolution
of the scientific reliability of the Alcotest 9510, and “by mere
happenstance,” she was “the named party in a case with broad
implications.” Under those circumstances, defendant argued, “[i]t
would be a manifest injustice . . . to impose the burden of
financing defense experts solely upon [defendant] . . . even if she
does not qualify as indigent.”
On August 22, 2023, Judge Geiger granted defendant’s motion.
The State moved before the Supreme Court to vacate Judge
Geiger’s order (M-247-23) on September 26, 2023. The State
distinguished Cassidy, contending that this matter does not involve
an indigent defendant or alleged malfeasance by a member of law
FILED, Clerk of the Supreme Court, 19 Dec 2025, 087913
enforcement -- both of which were present in Cassidy -- and
argued that there is no precedent to require it to pay for defense
experts in the circumstances of this matter. Doing so, it argued,
would present “an untenable conflict of interest” in that the State
necessarily would be required to exercise discretionary oversight
involving decisions that affect litigation strategy (e.g., which
experts to hire and how many). As a practical matter, the State
also argued that defendant Cunningham would have had to pay
experts to support her own challenge to the Alcotest 9510
regardless of the State’s motion to directly certify the matter and
seek a global resolution.
In October 2023, the Court granted the State’s motion to vacate
Judge Geiger’s August 22, 2023 order. The Court’s ruling was
without prejudice to defense counsel applying for payment from
the Office of the Public Defender (OPD) to fund ancillary
services, if defendant qualified. Defendant Cunningham later
applied for and was denied ancillary services based on the OPD’s
determination that she was not eligible.
In June 2024, defendant Cunningham moved before the Court to
compel the State to pay for defense experts and daily transcripts of
the remand proceedings. The Court referred the matter to Judge
Geiger, who denied relief in July 2024.
Judge Geiger denied defendant’s motion for reconsideration in
August 2024.
In September 2024, defendant filed anew with the Supreme Court,
again seeking to compel the State to pay for defense experts and
daily transcripts of the remand proceedings (M-233-24).
Defendant concluded her briefing in November 2024.
On July 25, 2025, the Court (1) again declined to compel the State
to pay for defense experts, and (2) directed the State to pay for
daily transcripts.
On August 5, 2025, defendant filed a motion for reconsideration,
again asserting that defendant should not bear the costs of defense
experts. The Court denied the motion on August 11, 2025.
FILED, Clerk of the Supreme Court, 19 Dec 2025, 087913
Defendant Cunningham now seeks to withdraw her underlying motion
challenging the scientific reliability of the Alcotest 9510. The withdrawal of
defendant’s challenge at this late date leaves the Court without a party in
interest to challenge the admissibility of evidential breath samples generated
by the Alcotest 9510.
The Court has considered the submissions from all counsel. Some
proposed alternatives to dismissal include proceeding without a named
defendant in an adversarial proceeding, having the Court provide and fund
experts, or adding back defendants to the appeal. None of the proposals are
viable, and all would cause delays in a matter that has been pending for a long
period of time.
In sum, defendant Cunningham no longer challenges the scientific
reliability of the Alcotest 9510, and none of the other eight defendants
originally identified by the State have asked to have their case certified for
review by this Court. There is therefore no legal question for this Court to
decide. Moreover, defendants statewide are entitled to their day in court, and
the public is entitled to have DWI matters adjudicated in a timely manner that
promotes fairness and addresses safety concerns. The Court therefore
dismisses the pending appeal and lifts the limited stay of DWI matters so that
prosecutions may proceed, including prosecutions that rely on the Alcotest
9510. Defendants in individual cases may of course challenge the scientific
Reliability of the Alcotest 9510 if the so chose. The Court’s May 1, 2023 order in this matter is vacated.
Jurisdiction in not retained.
FILED, Clerk of the Supreme Court, 19 Dec 2025, 087913
