Court orders judges to accept evidence from new DWI test

Trenton - Even though a hearing on the reliability of a new breath test for suspected drunken drivers has not yet been conducted, the state Supreme Court has ordered judges throughout the state to accept its results as evidence in prosecuting DWI cases. The court also said most sentences for those convicted with evidence from the Alcotest 7110 MKIII-C should be put on hold until the Supreme Court rules on the machine’s dependability. The order from the state’s highest court lifts freezes on hundreds of drunken driver prosecutions that were put on hold last year by judges after defense lawyers raised concerns about the machine. The Alcotest has replaced the Breathalyzer in 10 of the 21 counties and is to be in the others by November. The Supreme Court advised judges, when possible, to cite evidence beyond the Alcotest readings _ such as ``objective observational evidence’’ _ when sentencing people convicted of drunken driving. But sentences for first offenders would be temporarily stayed unless the trial judge determines that the severity of the crime and the defendant’s record ``requires the immediate execution of the sentence,’’ the court said. The four-page order was signed by Chief Justice Deborah T. Poritz on Tuesday and made public on Wednesday. All six associate justices joined in the order. The order was criticized by a lawyer for drunken driving suspects who had won freezes on DWI prosecutions in Burlington, Middlesex, Morris and Union counties. ``It’s basically allowing evidence into cases that is not allowed under current case law,’’ Evan M. Levow said. ``There’s no evidence before any court right now to suggest that this machine is reliable.’’ The latest development came nearly a month after the Supreme Court, of its own accord, decided to take control of disputes over the new machine that were surfacing in several counties. At that time, the court appointed a special master to conduct a hearing on the Alcotest’s reliability. The special master, retired appellate judge Michael Patrick King, has not set a date for that hearing, Levow said. The proceeding could take weeks to complete, after which the Supreme Court would review his findings and hear oral arguments. The Alcotest was certified as accurate in 2003 by state Superior Court Judge Francis J. Orlando Jr. in Camden County. The state Attorney General’s Office maintained that the 2003 hearing gave statewide recognition of the Alcotest machine, but a Superior Court judge in Middlesex County disagreed in the fall and put DWI cases there on hold. Burlington, Morris and Union followed in December. The legal threshold for intoxication in New Jersey is 0.08 percent. The Alcotest uses two independent, simultaneous methods to analyze a suspect’s breath to determine the level of intoxication: infrared light and an electrochemical reaction. It produces a printout with both readings.