Attorney General memo to Prosecutions for DWI Alcotest 9510 machines
Guidance on Prosecutions with Alcotest 9510 Instruments
The following instructions apply to all prosecutions utilizing the Alcotest 9510 breath-testing instrument to determine an individual’s blood alcohol content (“BAC”).
Previously Stayed Cases
Pursuant to the Supreme Court’s Order, dated December 19, 2025, the limited stay of 9510 DWI matters is lifted, and all matters should proceed in the normal course, including prosecutions relying on Alcotest 9510 readings.
The Law Remains Unchanged
The Supreme Court dismissed the reliability challenge to the Alcotest 9510 presented in State v. Cunningham after defendant moved to withdraw her motion for a reliability hearing, and no other defendant or amici was willing to serve as the named party in the case. Therefore, prosecutors should continue to rely on prior precedent, including State v. Chun, 194 N.J. 54 (2008) (upholding established principles of breath testing generally, and the reliability of the Alcotest 7110 specifically), and State v. Olenowski, 253 N.J. 133 (2023) (clarifying legal framework for challenges to reliability of novel scientific evidence in the criminal context).
Prosecutors seeking to admit breath-testing results from an Alcotest 9510 system should proceed in the normal manner, establishing that: (1) the instrument was in proper working order at the time of the test; (2) that the operator was certified; and (3) that the test was administered according to official procedure. Chun, 194 N.J. at 54 (citing Romano v. Kimmelman, 96 N.J. 66, 81 (1984)). The State shall offer into evidence the most recent certification report prior to a defendant’s test, including control tests, linearity tests, the parameter report, wet and dry adjust, cylinder installation reports, all certificates of analysis for the simulator solution, simulator, dry gas, and barometer, the instrument certificate of accuracy, and the credentials of the coordinator who performed the certification. See Chun, 194 N.J. at 154.
Future Reliability Challenges
The upgrade from the Alcotest 7110 to the Alcotest 9510 does not change the Supreme Court’s historic acceptance of breath testing as a reliable means of determining an individual’s blood alcohol content. Despite that fact, defendant Cunningham and amiciinitially sought to challenge the reliability of the Alcotest 9510 instrument specifically; however, the matter was dismissed before any challenges specific to the instrument were heard. If there are future Daubert-Olenowski challenges to the reliability of the Alcotest 9510 specifically, the State will continue to seek to consolidate those challenges to be heard at a Statewide level.
Accordingly, any prosecutor handling a DWI matter in which the defendant files a Daubert-Olenowski motion, or is informed that such a motion will be forthcoming, mustimmediately communicate that fact to their County Prosecutors Office Municipal Prosecutor Liaison, who is to then notify the Division of Criminal Justice.
Prosecutors should also inform their court that the challenge will be forwarded to the Division of Criminal Justice for review and consideration for a motion for direct certification. It is possible that such defendants may become named defendants in a reliability hearing before the Supreme Court and likely a Special Adjudicator. In order to prevent undue delay or inefficiency, prosecutors should advise defendants pursuing such motions that the Supreme Court in Cunningham repeatedly held that the defense was responsible for its own litigation expenses, including the cost of any defense expert witnesses the defense believed necessary to support its motion.
