The state Supreme Court held that drug recognition expert (DRE) evidence is admissible as long as the opinion is limited to whether the driver shows signs consistent with the ingestion or usage of drugs and not that the alleged impairment was actually caused by the drugs.
The New Jersey State Bar Association argued that DREs are not qualified as expert witnesses based on the lack of scientific reliability of the drug influence evaluation (DIE) and should not be considered expert witnesses. Rather, they should be considered lay witnesses or “evaluators” based on their specialized training in taking vital signs and assessing eye movements, which evidence and testimony should be limited to the underlying testing and not on the ultimate opinion of drug impairment. NJSBA Municipal Court Practice Section Past Chair John Menzel argued the matter on behalf of the NJSBA and wrote the supplemental brief.
“First, we unanimously hold that Daubert-based expert reliability determinations in our criminal appeals should be reviewed de novo, while other expert admissibility issues are to be reviewed under an abuse of discretion standard,” said the Supreme Court in a 5-to-2 decision. The opinion was written by Judge Jack M. Sabatino (temporarily assigned), and Justices Anne M. Patterson, Lee Solomon, Rachel Wainer Apter and Douglas M. Fasciale joined in it. Justice Fabiana Pierre-Louis penned a dissent, which was joined by Chief Justice Stuart Rabner.
The majority’s stopgap resolution on the admissibility and probative use of a DRE’s opinion in criminal and quasi-criminal cases are that (1) a DRE is only allowed to opine in court that the protocol has presented indicia that are “consistent with” the driver’s usage of certain categories of drugs; (2) a DRE must make a reasonable attempt to obtain a corroborating toxicology report, otherwise the DR evidence will be excluded; (3) if DRE evidence is admitted, the defense shall have a fair opportunity to impeach or rebut the evidence through cross examination and counterproofs; and (4) explanatory instructions to jurors would be helpful on the issue of DRE evidence. The Court referred this last recommendation to the Model Criminal Jury Charges Committee for consideration.
The dissent parted ways with the majority, opining that the safeguards recommended by the majority go beyond the Court’s charge to ensure that if evidence is given the weight of an expert’s endorsement, that evidence has “a sufficient scientific basis to produce uniform and reasonably reliable results.” Justice Pierre-Louis wrote that the majority’s determination of reliability is not supported by the test and is not admissible under New Jersey Rules of Evidence 702.
"While the NJSBA argued against the admissibility of DRE evidence at all, we are pleased that important safeguards will be in place to ensure limitations on its use. In addition, we support the use of the Daubert standards for review of expert testimony in the future. And we agree that the burden should be on the state to use DRE evidence as a last resort when other more-reliable testing is available, such as toxicology analysis. We are heartened that the dissenting opinion agreed with the NJSBA position that the current DRE method is unreliable” said NJSBA President Timothy F. McGoughran.
The matter emanates from a conviction of drug-impaired driving based in part on DRE evidence. Defendant Michael Olenowski’s convictions were upheld on appeal and the court granted certification on the admissibility of DRE testimony under the “general acceptance” admissibility standard established in Frye v. United States. The matter was referred to a special master to hold hearings on the issue, which concluded that DRE evidence should be admissible under Frye. Later briefing urged reconsideration of the evidence under Frye because of the error rates associated with DRE evidence. Since error rates are considered in Daubert, but not Frye, the parties – including the NJSBA – urged the Court to adopt the Daubert standard. The Court adopted a “Daubert-type standard” for determining the reliability of expert evidence in criminal and quasi-criminal cases and remanded the matter to a special master to analyze the issue using Daubert. The special master concluded that the 12-step DRE protocol satisfies the reliability standard of N.J.R.E. 72 when analyzed under this standard.
Read the opinion at njcourts.gov.
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