NJ Attorney General Memo to Prosecutors on Documents to always be provided in Discovery
To: All County Prosecutors
All Municipal Prosecutors
All Chief Law Enforcement Officers
From: Theresa Hilton, Director, Division of Criminal Justice
Date: February 25, 2026
Subject: Interim Guidance Regarding Discovery Requests for Alcotest 9510 Cases
In light of the Supreme Court’s dismissal of State v. Cunningham following the defendant’s withdrawal of her motion for a scientific reliability hearing, the Court also lifted the limited stay that had been in place during the pendency of those proceedings. As the Court’s Order specifically permits prosecutions relying on Alcotest 9510 breath test readings to proceed, the following instructions apply to all prosecutions utilizing the Alcotest 9510 breath-testing instrument to determine an individual’s blood alcohol content (“BAC”).
Data Downloads
Consistent with State v. Chun, 194 N.J. 54, 90 (2008), and as was done for the Alcotest 7110, the Alcotest 9510 program will include a centralized database providing defendants with paid access “to centrally collected and maintained data on their own cases, as well as to the compiled scientific data on matters involving others that has been redacted to shield the personal information related to those other individuals as appropriate.” As with the development and implementation of the Alcotest 7110 database, the Alcotest 9510 database is still in development and is not yet available for public access. Accordingly, until a public, statewide database is established, all discovery requests related to 9510 data downloads shall be made to and provided through the assigned prosecutor at no charge on an interim basis, and the following procedures shall apply:
• Law enforcement agencies: Any law enforcement agency receiving a discovery request relating to Alcotest 9510 data downloads must immediately forward that request to the appropriate municipal or county prosecutor.
• Prosecutors: All prosecutors receiving a discovery request relating to data downloads for a 9510 case must submit a request on official office letterheadOFSAlcotest@njsp.gov specifying: 1 to the Office of Forensic Sciences via email at
1 Where possible, municipal prosecutor or County Prosecutor’s Office letterhead should be used. In the alternative, a municipal prosecutor may use their law office letterhead but must specify the municipality for which the request is made.
2 See, e.g., State v. Maricic, 417 N.J. Super. 280, 282 (App. Div. 2010) (granting defendant’s request for discovery of Alcotest results from the date of the instrument’s last calibration until the defendant’s breath tests); see also, State v. Ford, 240 N.J. Super. 44, 51-52 (App. Div. 1990) (finding that requiring routine production of the entire repair record for the instrument, or similar documents, without appropriate time limitations would be unreasonable).
1. The town in which the breath test was conducted.
2. The type of data being requested, with additional details as follows:
For data downloads specific to a defendant’s breath test result, the request must include: • The defendant’s Alcohol Influence Report (AIR). If an AIR is not available at the time of the request, the request must include, at a minimum: o The defendant’s name and date of birth; and
o The date of the breath test.
For data downloads related to activity on the defendant’s particular Alcotest 9510 instrument, the request must include: • The serial number of the 9510 instrument;
• The type of data requested from that instrument
(i.e., breath test results, certification records); and
• The time frame requested.2
3. The due date of the request If the court has issued an order or otherwise specified a particular due date, the date must be noted in the subject line of the email request and any court orders must be attached to the email.
All other requests will be addressed in the order in which they are received.
Properly submitted requests will be processed and all requested data will be provided to the requesting prosecutor via email. Prosecutors are reminded that in the event of a discovery dispute, the court may order a party to permit the discovery of materials not previously disclosed, may grant a continuance or delay, prohibit the party from introducing into evidence the material not disclosed, or may enter such other order as the court deems appropriate. See R. 7:7-7(j); R. 3:13-3(f); see also State v. Robertson, 438 N.J. Super. 47, 54 (App. Div. 2014) (rejecting defendant’s request for specific data downloads and finding that neither Chun nor established principles of discovery compelled exclusion of the Alcotest results).
Foundational Documents
This Guidance is issued to clarify the previously-issued Guidance Memo dated December 30, 2025 and to specifically identify the foundational documents to be provided in discovery as well as the subset “core” foundational documents to be entered into evidence, consistent with the findings and principles set forth in Chun, 194 N.J. at 142-45, 153. See also, State v. Robertson, 438 N.J. Super. 47, 65-66 (App. Div. 2014) (citing Chun’s finding that the State is not required to introduce the non-core foundational documents into evidence in order to establish admissibility of breath test results).
4 The cylinder used in the control tests is identified on the AIR as the Active Dry Gas Cylinder “#1 (Upper)” or “#2 (Lower),” corresponding to Inlets 1 and 2, respectively.
5 The Cylinder Installation Reports for Inlets 1 and 2 identify the dry gas by Lot Number. The same Lot Number is also displayed on the corresponding Certificate of Analysis.
Consistent with the Supreme Court’s findings in Chun, the following foundational documents from the relevant instrument’s most recent certification shall be provided in discovery for all DWI cases in which an Alcotest 9510 was utilized:
1. Alcotest 9510 Parameter Report
2. Alcotest 9510 Certification Report – Wet Adjust (Part I)
3. Alcotest 9510 Certification Report – Dry Adjust (Part II)
4. Alcotest 9510 Certification Report – Linearity (Part III)
5. Alcotest 9510 Cylinder Installation Report – Inlet 1
6. Alcotest 9510 Cylinder Installation Report – Inlet 2
7. Certificate of Analysis for the 0.10 percent simulator solution used in the Wet Adjust
8. Certificate of Calibration for the Alcotest X-Cal 2000 Simulator
9. Certificate of Calibration for the Portable Barometer
10. Certificate of Analysis for the 0.10 percent dry gas used in the Dry Adjust
11. Certificate of Analysis for the 0.10 percent dry gas installed in Inlet 1
12. Certificate of Analysis for the 0.10 percent dry gas installed in Inlet 2
13. Certificates of Analysis for 0.04, 0.08, 0.16, and 0.30 percent dry gases used in Linearity
14. Draeger Certificate of Accuracy for the Alcotest 9510 Instrument
15. Credentials of the Breath Test Coordinator who performed the certification
Consistent with the Supreme Court’s findings in Chun, in which the Court found no reason to require that all of the foundational documents be made a part of the record routinely, the following subset of core foundational documents shall be entered into evidence to demonstrate the good working order of the instrument at the time of the test:
1. The most recent certification report prior to the defendant’s test, including:
Wet Adjust (Part I)
Dry Adjust (Part II)
Linearity (Part III)
The credentials of the Coordinator who performed the certification
2. The Cylinder Installation Report from the cylinder (Inlet 1 or 2) used for the control tests during the defendant’s breath test.4
3. Certificate of Analysis of the 0.10 percent dry gas installed in the relevant cylinder (Inlet 1 or 2) used for the control tests during the defendant’s breath test.5
Requests for discovery beyond these identified foundational documents “must be viewed in light of general principles governing discovery in municipal court, and the Chun Court’s observations regarding the relevance of certain documents.” Robertson, 438 N.J. Super. at 66. For example, in State v. Maricic, the Court granted the defendant’s request for repair logs or written documentation relating to repairs of the relevant instrument. 417 N.J. Super. at 282. Juxtaposed to Robertson, where the Court denied the defendant’s request for repair records consisting of the results of various tests performed by Drager during the repair, noting that such records are in the possession of a private company – not the State – and as such, it was defendant’s obligation to subpoena those records from Draeger. 438 N.J. Super at 69.
Questions about these procedures should be directed to the applicable County Municipal Prosecutor liaison.
