The words, "breaking news" are over used. Everything seems to be "breaking news" these days.  My senses are worn down from "breaking news" that isn't.

"Breaking news" should suggest something important and urgent, demanding interruption of "regularly scheduled programming." I think there could be "breaking news" from the Municipal Court system in New Jersey. It very well might have to do with something that is breaking, if not already broken.

These are uncertain times for the New Jersey Municipal Courts. A number of issues will challenge and stress the system's ability to simply function, no less dispense justice. Some of these challenges are new, some old. Together, they may create a "perfect storm" of challenging issues with unexpected and unknown consequences.

Judges, prosecutors and defense counsel around the state have just begun dealing with new and unfamiliar DWI sentencing procedures, based on Interlock installation, which became effective on Dec. 1, 2019. At the same time, 20,000 or so outstanding DWI matters remain unresolved as a result of issues arising from the Supreme Court's Cassidy decision. Complicating matters further, municipal courts must resolve cases involving claims of non-alcohol related intoxication, after the Supreme Court's recent decision in Olenowski, where another special master has been appointed to determine the evidential value of Drug Recognition Evaluations. If this were not enough, it appears that the state will begin a test program in certain counties prior to implementation of a new breath testing program, to replace the Alcotest 7110 MKIII-C.

Courts are now applying significant sentencing changes to the New Jersey DWI law, NJSA 39:4-50. The basic concept of punishing offenders through suspension of driving privileges has been radically changed to allow motor vehicle operation after conviction for most DWI offenses, upon installation of ignition interlock devices in measuring drivers' blood alcohol content, before vehicle ignition can occur. Rather than losing driving privileges, many drivers convicted of DWI will be allowed to drive, in some cases immediately after conviction. Continued driving privileges will depend upon whether the offense is a first or second offense, depending further upon the level of blood alcohol content established at time of offense.

Obviously, courts will be challenged with first understanding and then implementing this new statutory scheme with any degree of uniformity and certainty. Beyond simply mastering the statutory scheme, other questions will undoubtedly be asked as to the applicability of sentencing to offenses occurring before the Dec. 1, 2019 date. While the statute states that its provisions are not retroactive, appellate courts will have to determine if retroactive application is required as a simple matter of fairness in administration penalties for DWI violations, as the Supreme Court did with regard to drug offenses in State v. Smith.

Other attorneys may challenge the scientific reliability of the interlock device itself. The interlock, essentially a portable breath device, does not employ safeguards used in evidential breath testing against potentially contaminated breath samples resulting from mouth alcohol, possible electromagnetic interference arising from cell phones, electronic watches and other portable electronic devices.

If history is any guide as to what we can expect, these and other challenges will percolate up through the courts until the Supreme Court appoints a special master and then answers these questions. Until that time, there may be stays of sentences, uncertainty, confusion, and uneven sentencing throughout the state.

This prediction however, isn't that bold. Implementation of the Supreme Court's decision in State v. Cassidy has resulted in delays in disposition of pending cases for two to three years, after the Supreme Court held that breath test results in 20,000 DWI cases were not reliable in establishing per se violations as a result of a trooper's improper periodic testing of breath test machines. While breath tests in subsequent DWI prosecutions have not been affected by the problem addressed in Cassidy, sentencing has been disrupted where tainted breath tests may have been the basis for guilty pleas or findings of guilt in prior prosecutions. Consequently, enhanced sentencing as a subsequent offender under the statute cannot proceed.

Normally, these issues would be resolved through applications for Post Conviction Relief pursuant to the rules. However, this process has been preempted by the Supreme Court's decision to create a special procedure with four special masters appointed to make these determinations. Unfortunately, no procedure has been announced and these cases remain unresolved.

But wait … there's more! The Supreme Court, in its recent decision in State v Olenowski, directed that still another special master figure out whether Drug Recognition Evaluations are to be considered scientifically reliable before DRE testimony can be considered. This testimony is often the basis for a DWI prosecutions when the state claims that operation is impaired by a substance other than alcohol. Another special master means even more delay in resolving cases, more uncertainty as to results, and more challenges for courts that will interfere with and delay disposition of cases.

Finally, there is the prospect of trial programs implemented around the state to determine how the successor to the Alcotest 7110 MKIII-C breath test program will be implemented to determine blood alcohol content in DWI cases. As was the case in Chun and Foley before it, the scientific reliability of the new program will be challenged and vetted with the appointment of still another special master, before consideration by the Supreme Court.

At the end of the day, uncertainty and uneven administration of justice seems to be the story for the Municipal Courts of New Jersey. The sad thing is, this may not even be breaking news!

Peter H. Lederman is a partner with Lomurro, Munson, Comer, Brown & Schottland in Freehold. His practice is limited to representing defendants charged with DWI and related offenses.