Directive Admissibility of Drug Recognition Expert (DRE) Evidence – State v. Olenowski (Olenowski II)
February 7, 2024
This memo is intended to provide guidance with regard to the Supreme Court's November 2023 decision in State v. Michael Olenowski (Olenowski II), 255 N.J. 529 (2023), holding that Drug Recognition Expert (DRE) testimony is sufficiently reliable and admissible as expert testimony in criminal and quasicriminal matters, including driving while intoxicated (DWI) matters, subject to four limitations and safeguards. Those limitations and safeguards are set forth below.
The DRE process involves a 12-point procedure and is most often used in prosecuting violations of N.J.S.A. 39:4-50, which prohibits impaired driving.
While the Alcotest machine can detect blood alcohol concentration in drivers and an .08% concentration is a per se violation, there is no similar per se violation for
people who drive with impairment-causing drugs in their system. The defendant in Olenowski II was convicted at trial of drug-impaired driving based in part on DRE evidence.
The Court in Olenowski II applied the new standard for assessing the reliability of expert testimony in criminal and quasi-criminal matters that was set forth in State v. Olenowski (Olenowski I), 253 N.J. 133 (2023). This standard involves a non-exclusive, multi-factor test for reliability patterned after the standard established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and replaces the previous "general acceptance" admissibility standard established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
In Olenowski II, the Court also determined that de novo is the appropriate standard of review for Daubert-based expert reliability determinations in criminal appeals, while other expert admissibility issues are reviewed under an abuse of discretion standard.
The Court held that DRE testimony may satisfy the admissibility criteria of the Daubert-type standard, subject to 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. 255 N.J. 610. The DRE's expert opinion testimony must not go further than that and proof of consistency can be pertinent as one component within the totality of the evidence to support an inference that drugs caused a driver's impairment. Id. at 611.
• If the State fails to make a reasonable attempt to obtain a toxicology report without a persuasive justification, the DRE testimony must be excluded. Id. at 613. The Court held that it is preferrable to obtain a blood sample rather than a urine sample -- when their DRE protocol indicates at Step 11 an opinion of consistency with drug use. Ibid. If the court finds no reasonable attempt was made, despite its feasibility, the DRE evidence shall be excluded; however,. If the State establishes a reasonable justification for the lack of a toxicology report, then the DRE evidence is admissible, subject to defense impeachment and counter.proofs. Ibid.
• The defense must be afforded a fair opportunity to impeach the DRE. Id. At 613-614.
• Model instructions to guide juries about DRE evidence should beconsidered. Id. at 614.
However, the Court cautioned that a positive DRE opinion does notconstitute a per se test of guilt as a .08% BAC Alcotest result would in a drunk driving case. Id. at 615. Instead, the DRE evidence must be considered by the trier of fact along with the remaining evidence in determining whether the State has satisfied its burden of proof. Ibid. See N.J.R.E. 702. The Court further noted that trial judges must still ensure that DRE expert witnesses reliably applied· the methodology as set forth in the opinion. Id. at 616. •
Because Defendant Olenowski' s convictions were based on DRE testimony that did not adhere to the guidelines set forth in the opinion, the Court vacated the judgments entered against him. Ibid.
