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In a move to end the gridlock accompanying New Jersey’s adoption of a new device to prove drunken driving cases, the state Supreme Court has taken over the test case that will establish the machine’s scientific reliability. The court, of its own volition on Dec. 14, directly certified State v. Chun et al., a group of five drunken driving cases that were consolidated in Middlesex County Superior Court for evidentiary hearings on scientific reliability of the Alcotest 7110, the infrared device that replaces the 50-year-old Breathalyzer. At the same time, the court lifted the stay on admissibility of Alcotest readings in prosecutions in the county, which may lead judges who have imposed stays in other counties to follow suit. The court named a special master to hold a plenary hearing and to report his findings with a view towards oral argument to the justices early next year. The special master, retired Appellate Division Judge Michael Patrick King, will hear testimony from the parties and may hear expert testimony and invite participation by amici curiae or intervenors. The justices will then invite responses to King’s report before conducting oral argument on the first available date, the order states. The action will likely speed up the resolution of uncertainty over admissibility of the Alcotest. The device is in use in 11 of the state’s 21 counties, but in Middlesex County, Superior Court Judge Jane Cantor had put a stay on Alcotest-based prosecutions pending a hearing on the machine’s scientific reliability. Although a Camden County judge had found the Alcotest readings reliable, Cantor declined to take judicial notice. On Dec. 4, the state Appellate Division declined to overturn Cantor, and on Dec. 12, assignment judges in Morris, Sussex and Union counties also issued stays. On Dec. 13, Burlington County Assignment Judge John Sweeney told lawyers he intended to do the same, and defense motions to stay use of Alcotest results were pending in Gloucester, Salem and Cumberland. The stay orders would have required prosecutors, in municipalities where the Alcotest has replaced the Breathalyzer, to either postpone drunken driving prosecutions or proceed based solely on arresting officers’ testimony of defendants’ behavior, such as slurred speech, watery eyes and failure of field sobriety tests. On Dec. 7, the state attorney general issued a memorandum advising police chiefs and municipal prosecutors not to ease up in drunken driving prosecutions. John Hagerty, a spokesman for the Division of Criminal Justice, says “prosecutions will still go forward, using field sobriety tests, videotape evidence and other investigative means.”

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