NJSBA joins in urging rejection of state’s 12-step DRE protocol
Briefs submitted in lieu of closing testimony urged Special Master Joseph F. Lisa, a retired Appellate Division judge, to reject the state’s 12-step Drug Recognition Expert (DRE) protocol as scientifically reliable to determine that someone is under the influence.
The New Jersey State Bar Association (NJSBA) joined the National College for DUI Defense, DUI Defense Lawyers Association, and the Association of Criminal Defense Lawyers of New Jersey in its submission to the Supreme Court in State v. Olenowski, Docket No. C-677. NJSBA member John Menzel is an author of the brief.
Olenowski emanates from the arrest of Michael Olenowski, now deceased, of driving while intoxicated and related offenses in Hanover Township. He was convicted in 2017. It was his third offense. He appealed this conviction in 2018 and petitioned to the Supreme Court for certification challenging the reliability of DREs. Granting certification, the Supreme Court remanded the matter for a plenary hearing to consider whether DRE testimony is admissible under the applicable reliability standards. Judge Lisa conducted a Frye/Harvey hearing after several case management conferences and is set to make a recommendation to the Supreme Court regarding the reliability of DRE testimony.
The NJSBA has long held that DRE evidence should be inadmissible for any purpose unless the state is able to set forth the appropriate foundation under Frye and Harvey that it is scientifically reliable. Following the hearing, the NJSBA joined with amici to argue that the state fell short.
“The limitations, practical or otherwise, of the DRE protocol for identifying drivers impaired by drugs to be unfit to safely operate a motor vehicle, under our laws or any laws, are so great as to render the State’s attempts inadequate to establish scientific validity,” said amici in the brief to the Supreme Court. “Innumerable variables – individual tolerance, dosage, time of consumption, drug effects given dosage and active or inactive status with most people being on some prescription medication – diminish the validity and usefulness of the toxicology test and DRE protocol itself.”
The NJSBA continues to monitor this matter.
NJSBA proposes arbitration provisions
The NJSBA urged the Supreme Court to consider recommendations and model language for inclusions in the Rules of Professional Conduct following the Court’s decision on arbitration clauses in retainer agreements. Suggesting that the Advisory Committee on Professional Ethics (ACPE) recommendation on the issue fell short, the NJSBA urged language that “builds upon the previous stakeholder submissions.”
The recommendations follow a request from the Court in its decision in Delaney v. Dickey, 244 N.J. 466 (2020) “to make recommendations to [the] Court and propose further guidance on the scope of attorney’s disclosure requirements.” Signaling concern with ACPE’s approach, the NJSBA pointed out that the committee’s recommendations “approach arbitration clauses with a suspicion not echoed by this Court” that lawyers will inherently act against the best interests of their clients when it comes to arbitration clauses for other disputes.
The model language proffered by the NJSBA serves several important objectives, including:
- To clarify the current New Jersey law which permits binding arbitration clauses to be included in contracts and hence, attorney retainer agreements;
- To provide attorneys in New Jersey with model language which is clear, easy to understand and explains the pros and cons of agreeing to binding arbitration, thereby allowing the client to make an informed decision about whether to sign the retainer; and
- To provide attorneys with approved language which, if utilized, will avoid court intervention regarding whether the language is appropriate and enforceable.
Visit njsba.com to read the full list of recommendations.
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.