April 2026 | The New Jersey Police Chief Magazine 12
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 amici initially 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, must immediately 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.
Full Attorney General memo at Criminal Law- Recent Cases Vercammen Law https:// njcriminallaw. blogspot. com / 2026 / 01 / attorney-general-memo-to-prosecutions. html
3 OK for police observation of defendant ' s entry of his passcode into his cell phone State v Ellison 482 N. J. Super. 357
This appeal raises a novel issue regarding whether an officer ' s observation of defendant ' s entry of his passcode into his cell phone violates defendant ' s right to privacy and Fifth Amendment right against self-incrimination. The court holds that defendant had no reasonable expectation of privacy given the facts of this case. The court further holds there was no violation of defendant ' s Fifth Amendment right against self-incrimination where defendant voluntarily requested his cell phone, was not compelled to provide the passcode and voluntarily entered the passcode in front of the officer. Moreover, the State would have inevitably discovered the passcode for defendant ' s cell phone by the issuance of an Andrews order. State v. Andrews, 243 N. J. 447( 2020).
Full opinion at Criminal Law- Recent Cases Vercammen Law https:// njcriminallaw. blogspot. com / 2025 / 11 / ok-for-police-observation-of-defendants. html
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