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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.

On Jan. 17, the New Jersey State Bar Association (NJSBA) will urge the state Supreme Court to find that, for purposes of DWI prosecutions, the Drug Influence Evaluation technique and the Drug Recognition Evaluation (DRE) opinion derived from the technique are unreliable, regardless of whether the technique is analyzed under the Frye or Daubert standards. The NJSBA is appearing as amicus curiae in State v. Olenowski, which addresses the issue of whether the testimony of Drug Recognition Experts (DRE) employing Drug Influence Evaluations (DIE) in matters involving driving under the influence (DUI) is scientifically reliable. John Menze, who also authored the brief, will argue the matter on behalf of the NJSBA.

The case started before the pandemic with two charges of driving while under the influence of drugs. The convictions were based on the admission of DRE opinion testimony, which is central to the controversy. The Supreme Court concluded that a Frye hearing should have been conducted and directed the appointment of a special master to conduct the hearing and issue a report for further consideration of the admissibility of DRE evidence. The special master issued its report in August using the Frye standard and briefing by the parties and amici followed in response to that report. The Supreme Court raised a new question as to whether the Court should depart from the Frye standard and adopt the principles of Daubert in criminal cases.

While the NJSBA argues that DRE evidence is not scientifically reliable under either standard, it also argued that the Daubert standard should be used in all criminal cases. “The Daubert standard recognizes that science is always evolving and flexibility is required to determine if the particular technique at issue has moved to the point of being considered reliable,” said the NJSBA in its brief to the Supreme Court. “By enunciating a range of factors, Daubert provides a roadmap for the types of proofs that trial judges can consider to aid them in making an appropriate evidentiary determination, as opposed to Frye, which simply states a ‘general acceptance’ standard.”

Amici aligned with the Office of Public Defender on behalf of the defense include the National College for DUI Defense, Association of Criminal Defense Lawyers of New Jersey, DUI Defense Lawyers Association and the American Civil Liberties Union. On the side of the state, represented by the Attorney General, are the County Prosecutors Association of New Jersey and the Association of Chiefs of Police.

Civil Arbitration Program Initial Arbitrator Training Available at NJSBA
The NJSBA will offer an initial arbitrator training course in conjunction with the Administrative Office of the Courts on Jan. 31 at the New Jersey Law Center. The training is in conformance with Rule 1:40-12(c), which requires all individuals who wish to serve as arbitrators in the court-annexed civil arbitration program to complete at least three classroom hours of initial training in a course approved by the AOC.

Attendees must register in advance at njsba.com. Questions may be directed to the AOC’s Chief of Civil Court Programs, Melissa Czartoryski at 609-815-2900, ext. 54900 or [email protected].