NJ Supreme Court Establishes New Standards for Drug Recognition Experts

NJ Supreme Court Establishes New Standards for Drug Recognition Experts

In State v. Olenowski (A-56-18) (082253) (Decided November 15, 2023), the Supreme Court of New Jersey held that Drug Recognition Expert (DRE) testimony is reliable and admissible under the criteria set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), albeit with certain limitations. The decision is significant given the key role DRE’s play in determining whether drivers are impaired by cannabis or other drugs.

Facts of State v. Olenowski

New Jersey law, N.J.S.A. 39:4-50, prohibits impaired driving, whether the impairment is caused by alcohol or one or more drugs. A driver whose blood alcohol concentration (BAC) level exceeds the 0.08% limit prescribed by that statute is guilty — per se — of driving while intoxicated. However, there is no equivalent per se violation in New Jersey for individuals who drive with impairment-causing drugs in their system.

To enable such detection, law enforcement officials and researchers developed a twelve-step protocol. The protocol consists of twelve steps administered by specially trained officers known as Drug Recognition Experts (DREs). The twelve steps entail interviewing and observing the driver, checking vital signs, administering standardized field sobriety tests, and other information-gathering measures. At the end of the protocol, the DRE, guided by a standardized matrix, reaches an opinion about whether the driver is under the influence of drugs from one or more of seven categories and is thereby unable to operate a motor vehicle safely.

Defendant Michael Olenowski was convicted of drug-impaired driving based in part on DRE evidence. His convictions were upheld on appeal, and the Court granted certification to determine whether DRE testimony is admissible under the “general acceptance” admissibility standard established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

In considering the case earlier this year, the New Jersey Supreme Court adopted a new non-exclusive, multi-factor test for the reliability of expert testimony patterned after the standard established in Daubert. A Special Master subsequently concluded that the twelve-step DRE protocol satisfies the reliability standard of N.J.R.E. 702 when analyzed under the new standard.

NJ Supreme Court Decision in State v. Olenowski

A divided New Jersey Supreme Court determined that the extensive record substantiated that DRE testimony sufficiently satisfies the Daubert criteria to be admissible, with certain safeguards in place.

“First, we unanimously hold that Daubert-based expert reliability determinations in our criminal appeals should be reviewed de novo, while other expert admissibility issues are to be reviewed under an abuse of discretion standard,” Judge Jack Sabatino, who is temporarily assigned to the New Jersey Supreme Court, wrote. “Second, we conclude the extensive record substantiates that DRE testimony sufficiently satisfies the Daubert criteria to be admissible with important limitations.”

In support of the admissibility of DRE testimony, the New Jersey Supreme Court emphasized that the twelve-step DRE process is elaborate and standardized. It further cited that it is grounded in a program that has been used across the nation and abroad for decades and is periodically modified.

Nonetheless, the Court acknowledged that the protocol also has several weaknesses, noting that it does not establish that a driver is actually impaired, or that the drug categories identified by the DRE are definitively the cause of any such impairment. Accordingly, it adopted the following limitations on the admissibility and probative use of a DRE’s opinion in criminal and quasi-criminal cases:

  • The DRE may opine only that the evaluation is “consistent with” the driver’s ingestion or usage of drugs, not that it was actually caused by drugs.
  • If the State fails to make a reasonable attempt to obtain a toxicology report without a persuasive justification, the DRE testimony must be excluded.
  • The defense must be afforded a fair opportunity to impeach the DRE.
  • Model instructions to guide juries about DRE evidence should be considered.

In its decision, the New Jersey Supreme Court also advised that unlike a BAC reading of .08% or more in a drunk driving case, the DRE’s opinion may not be used as a per se test of guilt. Rather, the DRE testimony is just one part of the evidence as a whole, and it can be amplified or rebutted.

Justice Fabiana Pierre-Louis authored a dissent, which was joined by Chief Justice Stuart Rabner. Justice Pierre-Louis argued that the majority approved the admissibility of DRE testimony despite acknowledging that they could not determine its reliability. “The majority opinion discounts legitimate concerns about the reliability and accuracy of the DRE protocol and upholds the admission of DRE evidence despite acknowledging that ‘the factors of testability and false positive error rate are largely inconclusive’ and that ‘DRE testimony does not, in and of itself, establish impairment,’” she wrote.

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