New Jersey Supreme Court Rules Drug Recognition Expert Testimony Admissible Under the Daubert-Accutane Standard
December 7, 2023
On November 15, 2023, the New Jersey Supreme Court released its decision on the much anticipated issue of whether Drug Recognition Expert (DRE) testimony is admissible under New Jersey Rule of Evidence 702. The Court concluded that the DRE tests, with certain safeguards, may be used as admissible evidence.
Under New Jersey law, it is illegal to operate a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic, or habit-producing drugs. However, unlike driver impairment caused by alcohol, which can be established by blood alcohol concentration testing reaching statutorily established levels, no similar statutes exist in New Jersey to establish driving under the influence of other intoxicating substances.
More than 50 years ago, law enforcement officials and researchers developed the Drug Evaluation and Classification Program to combat the challenge of detecting and proving driving under the influence charges. The protocol consists of twelve steps, which are administered by trained DREs. The protocol, which is typically administered at the scene of the motor vehicle stop or police headquarters, uses the subjective tests to ascertain intoxication. The twelve steps include but are not limited to: interviewing and observing the driver, checking vital signs, administering standardized field sobriety tests, and other information-gathering measures. At the end of the protocol, the DRE forms an opinion about whether the driver is under the influence of drugs from one or more of the prohibited categories of drugs, rendering the driver unable to operate a motor vehicle safely. Although the protocol is widely used throughout the country and Canada, it has been routinely challenged as unreliable.
Since 2019, the New Jersey Supreme Court has grappled with the issue of whether DRE testimony is admissible as evidence under the scientific “general acceptance test,” commonly referred to as the Frye admissibility standard.
The Courts’ recent decision arises after Michael Olenowski was pulled over, on two occasions in 2015, for not wearing a seatbelt. In both instances, Olenowski’s conduct caused the responding officer to conduct field sobriety tests. In addition, in both instances, a full examination at police headquarters by certified DREs occurred. The DRE concluded that on the first occasion, Olenowski was under the influence of a CNS Depressant, CNS Stimulant and Alcohol and on the second occasion he was under the influence of a CNS Depressant and CNS Stimulant. Olenowski was convicted in both trials at the municipal level because of the DRE’s testimony. The Law Division upheld the admissibility of the DRE evidence under Frye and affirmed each of the convictions after a de novo trial. The Appellate Division affirmed Olenowski’s convictions holding that it was appropriate for the lower courts to rely on the DRE evidence and despite the test’s unreliability, it agreed with the Law Division’s analysis that DRE was generally accepted under Frye.
Olenowski again appealed both convictions and the New Jersey Supreme Court granted certification to determine whether DRE testimony is admissible under the Frye “general acceptance” admissibility standard. However, prior to reaching its conclusion, the New Jersey Supreme Court first asked a Special Master to conduct a hearing to assess whether DRE evidence has achieved “general acceptance” within the relevant scientific community. The Special Master ultimately concluded that the DRE protocol is generally accepted as reliable in the scientific communities (specifically, medicine and toxicology). Given that the identification processes comported with practices generally acceptable in the medical field, the Special Master concluded that the DRE testimony was admissible under the then-existing Frye test. The Special Master also concluded that the training DREs received was comparable to that received by medical technicians.
The matter was returned to the Court to assess whether DRE evidence was reliable and accepted in light of the Special Master’s report. The Court considered subsequent briefing from the parties and amici on this issue, many of which highlighted error rates associated with DRE evidence. Since error rates are expressly considered under Daubert, but not Frye, the Court asked the parties and amici to submit supplemental briefing on “whether [the] Court should depart from Frye and adopt the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc. in criminal cases. The parties and most of the amici suggested the Court adopt the Daubert standard.
The Court ultimately adopted a Daubert-type standard set forth in Olenowski I, for determining the reliability of expert evidence in criminal and quasi-criminal cases with the Frye admissibility standard being folded into a single factor within the multi-factor Daubert test. The Daubert-type standard assesses, in sum, (1) whether the scientific theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication, and (3) the known or potential rate of error as well as the existence of standards governing the operation of the particular scientific technique; and general acceptance in the relevant scientific community. The Court remanded the matter to the Special Master to apply the modified Daubert standard to the record. Following additional briefing, the Special Master concluded in his supplemental report that the 12-step DRE protocol satisfies the reliability standard of N.J.R.E. 702 when analyzed under the multi-factor Daubert standard. The Special Master further concluded that DREs can be and are adequately trained to reliably perform the steps in the protocol, thereby satisfying N.J.R.E. 702’s requirement that the witness have sufficient expertise to offer the testimony.
In its November 2023 opinion, the Court agreed with the Special Master’s findings. The Court held that the Daubert-based expert reliability determinations in criminal appeals should be reviewed de novo, while other expert admissibility issues are reviewed under an abuse of discretion standard. The Court further held that, despite inconclusive tests and false positive error rates, the record as a whole supports the conclusion that DRE testimony sufficiently satisfies the Daubert criteria to be admissible. The Court reorganized the United States Supreme Court’s listing of Daubert factors and applied them in this sequence: (A) adequacy of standards; (B) publication and peer review; (C) testability and error rate; and (D) general acceptance.
Although the majority rejected that testability and error rates are categorically the most important Daubert factors, the Court created additional safeguards in recognition of the risk of error. First, 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. In addition, if the State fails to make a reasonable attempt to obtain a toxicology report without a persuasive justification, the DRE testimony must be excluded. Third, the defense must be afforded a fair opportunity to impeach the DRE. Finally, the Court urged consideration of model instructions to guide jury members.
The Court’s decision attempts to balance the risk and controversial nature of the DRE testing. In assessing Olenowski’s convictions, it concluded they failed to meet the requirements of the newly articulated standard. As a result, both were posthumously vacated.
The Court’s decision in State v. Olenowski is significant because the application of the Daubert standard in drug DUI cases not only changes the way that drug impairment, including cannabis, is measured for drivers, but it also creates a much steeper burden for the State to prove a driver’s guilt when it lacks corroborating proof from a toxicology expert. In the employment context, it is expected these protocols and safeguards will eventually be folded into the Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act for detection of impairment in workplace.