This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.
Hearings To Begin On Validity And Reliability Of Drug Recognition Testimony
A hearing is expected to begin today in the matter of State v. Olenowski on the issue of the admissibility of drug recognition evaluation (DRE) evidence. The Supreme Court has appointed a special master to hold a hearing and make a recommendation on the reliability of DRE evidence in the matter, calling into question the reliability of expert testimony of DREs who perform drug influence evaluations (DIE). John Menzel and Joshua Reinitz, who are both former chairs of the New Jersey State Bar Association’s (NJSBA) Municipal Court Practice Section, will participate on behalf of the NJSBA before Special Master Joseph F. Lisa, a retired judge. The hearing is expected to last at least six weeks.
The Association appeared as amicus curiae in Olenowski to question the legitimacy of DRE testimony. It argued that DRE testimony lacks the foundation to meet the Frye standard for expert opinions. “The integrity of our justice system rests on ensuring that only that evidence that meets the stringent requirements set by our courts for expert testimony is admissible as such,” said the NJSBA in its brief in the underlying matter.
The matter has a complex procedural history. Olenowski was convicted for driving while intoxicated twice in the same year. In his first arrest, he appeared impaired, but had a blood alcohol content of .04%, drawing a request for a DRE to perform a DIE. The DRE concluded Olenowski was under the influence of a combination of drugs and alcohol. In his second arrest, which occurred six months later, he registered a 0% blood alcohol content, though he failed field sobriety tests. This drew another request for a DRE, which concluded that Olenowski was under the influence of a combination of stimulants and depressants. The Law Division upheld the convictions, holding that DRE evidence was “generally acceptable and reliable in the scientific community.” The Appellate Division affirmed, finding that there was “sufficient credible evidence in the record” to support the earlier findings that Olenowski was driving while intoxicated on both occasions.
The NJSBA argued to the Supreme Court that the DRE evidence should be excluded because it lacks the foundation that these tests meet the Frye standard. The Association underscored the susceptibility of the accuracy of DRE opinions, pointing out that the relationship between the results of the DIE and the consumption of drugs or driving impairment are inconsistent among the scientific community. Unless the proponent of DIE techniques and DRE opinions derived from them lays an appropriate foundation, the NJSBA urged the Supreme Court to declare the evidence admissible (should this be inadmissible?) for any purpose. It further argued that admissibility in prior cases is not enough to show general acceptance, and more is needed to meet the standard.
In November 2019, the Supreme Court issued an order to remand the matter to a special master “for a plenary hearing to consider and decide whether DRE evidence has achieved general acceptance within the relevant scientific community” and satisfies the applicable reliability standard. State Superior Court Judge Bonnie Mizdol issued an order sua sponte staying matters in Bergen County, which led to the state requesting a stay in all matters. The NJSBA did not object to the request, but urged “a more nuanced approach.” The stay was denied.
In addition to the NJSBA, the New Jersey Attorney General’s Office, the American Civil Liberties Union, the New Jersey Public Defender’s Office, the Association of Criminal Defense Lawyers Association, the National College for DUI Defense, and the New Jersey State Association of Chief of Police appeared as amici. Since the start of the special master proceedings, the Public Defender’s Office has assumed the lead counsel role for the defense.