The New Jersey State Bar Association argued its position that Drug Influence Evaluations (DIE) lack scientific reliability under the Daubert standard of review because of the lack of objective standards in several of the 12 steps of the DIE. Therefore, a Drug Recognition Evaluator’s (DRE) reliance on a DIE is inadmissible as expert testimony because it fails to meet the Daubert standard. The Association appeared as amicus curiae before the state Supreme Court in State v. Olenowski to argue that DREs are not qualified as expert witnesses. Instead, the NJSBA said, they are more properly classified as specialized lay witnesses or evaluators who have received specialized training in taking vital signs and assessing eye movements. Past NJSBA Municipal Court Practice Section Chair John Menzel argued on behalf of the NJSBA and wrote the joint brief with the National College for DUI Defense.
“While vital signs and eye movements may be indicative of drug impairment by an admissibility standard of reasonable suspicion or probable cause, their relevance by standards of a preponderance of the evidence or proof beyond a reasonable doubt is limited,” said the NJSBA in its brief. “This Court should limit the scope of DRE testimony to facts they are competent to speak of, such as general observations and observations of vital signs, eyes, and the like, but prohibit the expression of an ultimate opinion of drug impairment except in the most florid cases.”
Special Master retired Appellate Division Judge Joseph F. Lisa issued a report and supplemental report on the issue. A special focus of this argument was to address the findings in the report that the Daubert standard, rather than the Frye standard, should apply to a determination on the admissibility of DIE evidence and the DRE evidence derived therefrom.
The Association argued that only parts of the 12-step DIE process could be judged on scientific reliability and that would be for the limited purpose of drug ingestion, not drug impairment. As such, the Daubert standard cannot be applied to DRE testimony because there is no scientific reliability in DRE testing, rather DRE evaluations are based on data that is not able to be measured with scientific reliability, the NJSBA said.
The Court reserved its decision.
Judicial vacancy crisis looms and county bar presidents want action
The presidents of the Somerset, Warren and Hunterdon county bar associations pleaded with the state’s leaders to address the judicial vacancy crisis that has shut down civil and matrimonial trials in their counties.
Somerset County Bar Association President Steven K. Warner, Hunterdon County Bar Association President Patrick Heller, and Warren County Bar Association President Kelly Shelton wrote a joint letter to Gov. Phil Murphy, Senate President Nicholas Scutari and Senate Judiciary Chair Brian Stack imploring the governor to “nominate qualified candidates” and “work with our Senators and the Governor to immediately confirm the nominees.”
The letter comes on the heels of sustained appeals by the NJSBA and the Supreme Court to address the widening dearth of judges. According to the letter, when the crisis began “Vicinage 13 was down approximately 29% of the judges required to run an efficient court system.”
“Without your intervention by June 30, Vicinage 13 will remain down 29%, and by the end of the year, Vicinage 13 will be down 33%,” said the county bar presidents.
The Senate has not yet announced another Senate Judiciary Committee, which is where the judicial candidates must first appear. According to the legislative calendar, only two more Senate quorum dates are posted—June 12 and June 15. While the Senate President can call an emergency meeting of the committee, the Legislature is expected to break for the summer at the end of this month.
The NJSBA continues to monitor judicial nominations in its continuing efforts to close the gap of judicial vacancies.
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.