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.
The Special Master rendered findings on the reliability of drug recognition experts (DRE) evidence which, if approved by the Supreme Court, will allow such evidence to be presented in prosecutions for driving while under the influence of drugs, but also render it subject to cross-examination. The NJSBA participated as amicus curiae in the matter of State v. Olenowski questioning the legitimacy of DRE testimony because it lacked the foundation to meet the Frye standard for expert opinions.
In its brief regarding the reliability of the evidence, the NJSBA joined the National College for DUI Defense, DUI Defense Lawyers Association and Association of Criminal Defense Lawyers of New Jersey arguing that the state failed to establish its scientific reliability. John Menzel appeared on behalf of the NJSBA and helped author both briefs. Joshua H. Reinitz and former NJSBA Trustee Miles S. Winder III wrote the brief challenging the reliability of DRE testimony.
“The reliability is established that the DRE protocol replicates generally accepted medical practices for identifying the presence of impairing drugs and their likely identity through a toxidrome recognition process,” the Hon. Joseph F. Lisa, P.J.A.D., said in a 332 report. “This testimony has also established that the DRE matrix comports with the matrices designed for this purpose and generally accepted and used in the medical field.”
Judge Lisa outlined the witness qualifications and credibility assessments of 16 experts who testified on various aspects of the analysis of whether DRE evidence meets the reliability standard of New Jersey Rules of Evidence 702. As part of that analysis, Judge Lisa was charged with determining whether each individual component of the 12-step protocol is reliable; whether all or part of the protocol is scientifically reliable and can form the basis of expert testimony; and whether components of the process present limitations, practical or otherwise.
The NJSBA urged a Frye analysis prior to permitting DRE evidence in order to ensure “that individuals charged with crimes are provided with a fair trial and that evidence relied upon to convict an individual of driving under the influence is valid.”
The matter emanates from two arrests of Michael Olenowski with driving under the influence of drugs. He was evaluated by DREs in both instances, each of whom determined he was under the influence. Olenowski moved to bar the DRE testimony and requested a Frye hearing to assess whether the proposed testimony was sufficiently reliable. After convictions at the municipal and Appellate Court levels were affirmed, the Supreme Court granted certification and held that a Frye hearing should have been conducted.
Judge Lisa noted that DRE training is akin to medical technician training and therefore able “to reliably apply the protocol. … Therefore, by implication, the DRE protocol as a whole and its individual components are generally accepted in the scientific community to which they belong, namely medicine and toxicology.”
In a statement last week, the NJSBA said it was honored to be included in the special master’s hearings and is currently examining the report closely to highlight the technique’s limitations.
“The NJSBA will continue its advocacy in this case concerning these important issues when it files additional comments to the New Jersey Supreme Court, which will make the final decision,” according to the statement.
The parties have 30 days to file responding briefs to the Special Master report, after which the Supreme Court is expected to schedule oral argument and issue its final decision.