Breath evidence can be powerful in a DWI case, but a number on a printout is not self-proving. The State must establish that the testing was legally authorized, the required procedures were followed, and the result is admissible under the law governing the device that generated it.
New Jersey’s Implied-Consent Law Applies to Breath Testing
N.J.S.A. 39:4-50.2 provides that a person who operates on New Jersey public roads or quasi-public areas is deemed to have consented to samples of breath when a police officer has reasonable grounds to believe the person operated in violation of the DWI law. The statute requires the officer to advise the arrested person of the consequences of refusal by reading the prescribed standard statement.
The statute also gives the tested person the right to obtain an independent chemical test of breath, urine, or blood by a person or physician of the person’s own selection.
State v. Chun and the Alcotest 7110
In State v. Chun, 194 N.J. 54 (2008), the New Jersey Supreme Court addressed the scientific reliability and admissibility of the Alcotest 7110 MKIII-C. The Court found that model generally scientifically reliable subject to conditions and established procedures and foundational requirements for admissibility.
Among other things, Chun addressed the observation period, breath-sample sequence, operator procedures, and foundational documents. Later cases have continued to litigate whether particular tests complied with those requirements.
The Alcotest 9510 Has a Different Procedural History
New Jersey began replacing the 7110 with the Dräger Alcotest 9510. In State v. Cunningham, the Supreme Court directly certified a challenge to the scientific reliability of the 9510 and appointed a Special Adjudicator to develop a record. The Court also imposed a limited stay affecting certain 9510 cases.
That statewide reliability litigation ended without a merits decision. On December 19, 2025, after the defendant withdrew her challenge, the Supreme Court dismissed the matter and lifted the stay. The Court expressly allowed prosecutions relying on Alcotest 9510 results to proceed and also expressly stated that defendants in individual cases may challenge the scientific reliability of the 9510.
What a Breath-Test Review Looks At
The exact checklist depends on the instrument and the law applicable to it, but a defense review may include:
- the identity and model of the instrument;
- operator credentials and required procedures;
- the pre-test observation period;
- the number, timing, and agreement of breath samples;
- control tests and instrument checks;
- calibration, certification, and foundational records;
- error messages or aborted tests;
- the relationship between the test time and the alleged operation; and
- whether an individual scientific challenge is warranted.
Two Breath Samples Matter
For the Alcotest 7110, Chun required at least two valid breath samples. The Appellate Division has recognized that the sample sequence and timing can matter when deciding whether the testing complied with the required protocol.
Blood Evidence Is a Different Constitutional Question
New Jersey’s breath implied-consent statute does not itself create blanket consent to a forced blood draw. A blood draw is a search. Under Missouri v. McNeely and State v. Adkins, the natural dissipation of alcohol does not create an automatic emergency exception to the warrant requirement. A warrant, valid consent, or another recognized exception may be required depending on the circumstances.
The Defense Question
The issue is not merely “What was the BAC?” It is whether the State can establish an admissible result generated through a legally sufficient testing process. Device model, procedure, timing, foundational records, and the current case law all matter.