Drug Recognition Expert (DRE) Testimony Found Reliable and Admissible under the NJ Rules of Evidence
November 15, 2023 - Posted by Larry E. Holtz, Esq.
In State v. Michael Olenowski (A-56-18) (11-15-2023), the New Jersey Supreme Court held that Drug Recognition Expert (DRE) testimony is reliable and admissible under the evidentiary standard established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The four major Daubert facts for assessing the reliability of an expert’s methodology under the rules of evidence include:
(1) whether the scientific theory or technique can be, or has been, tested;
(2) whether it has been subjected to peer review and publication;
(3) the known or potential rate of error as well as the existence of standards governing the operation of the particular scientific technique; and
(4) general acceptance in the relevant scientific community.
New Jersey’s drunk driving law, N.J.S. 39:4-50, prohibits impaired driving, whether the impairment is caused by alcohol or one or more drugs. Detecting and proving that a driver ingested and was under the influence of drugs while behind the wheel can be difficult. To enable such detection, law enforcement officials and researchers developed a twelve-step protocol:
(1) a breath alcohol test;
(2) an interview of the arresting officer;
(3) a preliminary examination and first pulse check;
(4) a series of eye examinations;
(5) four divided attention tests;
(6) a second examination and vital signs check;
(7) a dark room examination of pupil size and ingestion sites;
(8) an assessment of muscle tone;
(9) a check for injection sites;
(10) an interrogation of the driver by the DRE;
(11) a final opinion, based on the totality of the examination, about whether the driver is under the influence of a drug or drugs; and
(12) a toxicological analysis.
In this case, defendant Michael Olenowski was convicted of drug-impaired driving based in part on DRE evidence. His convictions were upheld on appeal, and the New Jersey Supreme Court granted certification to determine whether DRE testimony is admissible under current case law and our rules of evidence. After a remand for a hearing before a special master, the Court held that the extensive record created in this case substantiates that DRE testimony sufficiently satisfies the Daubert criteria to be admissible, with the following four limitations and safeguards:
In State v. Michael Olenowski (A-56-18) (11-15-2023), the New Jersey Supreme Court held that Drug Recognition Expert (DRE) testimony is reliable and admissible under the evidentiary standard established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The four major Daubert facts for assessing the reliability of an expert’s methodology under the rules of evidence include:
(1) whether the scientific theory or technique can be, or has been, tested;
(2) whether it has been subjected to peer review and publication;
(3) the known or potential rate of error as well as the existence of standards governing the operation of the particular scientific technique; and
(4) general acceptance in the relevant scientific community.
New Jersey’s drunk driving law, N.J.S. 39:4-50, prohibits impaired driving, whether the impairment is caused by alcohol or one or more drugs. Detecting and proving that a driver ingested and was under the influence of drugs while behind the wheel can be difficult. To enable such detection, law enforcement officials and researchers developed a twelve-step protocol:
(1) a breath alcohol test;
(2) an interview of the arresting officer;
(3) a preliminary examination and first pulse check;
(4) a series of eye examinations;
(5) four divided attention tests;
(6) a second examination and vital signs check;
(7) a dark room examination of pupil size and ingestion sites;
(8) an assessment of muscle tone;
(9) a check for injection sites;
(10) an interrogation of the driver by the DRE;
(11) a final opinion, based on the totality of the examination, about whether the driver is under the influence of a drug or drugs; and
(12) a toxicological analysis.
In this case, defendant Michael Olenowski was convicted of drug-impaired driving based in part on DRE evidence. His convictions were upheld on appeal, and the New Jersey Supreme Court granted certification to determine whether DRE testimony is admissible under current case law and our rules of evidence. After a remand for a hearing before a special master, the Court held that the extensive record created in this case substantiates that DRE testimony sufficiently satisfies the Daubert criteria to be admissible, with the following four limitations and safeguards:
- The DRE may opine only that the evaluation is “consistent with” the driver’s ingestion or usage of drugs, not that it was actually caused by drugs.
- If the State fails to make a reasonable attempt to obtain a toxicology report without a persuasive justification, the DRE testimony must be excluded.
- The defense must be afforded a fair opportunity to impeach the DRE.
- Model instructions to guide juries about DRE evidence should be considered.