Directive Admissibility of Drug Recognition Expert (DRE) Evidence – State v. Olenowski

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.

 

Office space for rent PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE 2053 Woodbridge Ave. Edison, NJ 08817 Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd location or location to meet clients in Edison. The offices are located on the 1st floor of the building. 2 rooms office office room # 6 approx 12.4 x 9.4 and front room appr 8 x 9 -office room # 5 plus use of reception room 16.6 x 7.2 ‘ Previously used by Robert Blackman, late former Judge and Prosecutor of Edison $600 per month Call 732-572-0500 Owner of building is local attorney, Kenneth Vercammen who handles Municipal Court, Estate Planning & Probate, and Criminal Law.

  Office space for rent 

PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE

2053 Woodbridge Ave.

Edison, NJ 08817

 

 Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd location or location to meet clients in Edison.

 

  The offices are located on the 1st floor of the building.

2 rooms office   

office room # 6 approx 12.4 x 9.4        

and front room appr 8 x 9 -office room # 5

plus use of reception room  16.6 x 7.2

‘

   Previously used by Robert Blackman, late former Judge and Prosecutor of Edison

         

$600 per month   

Call 732-572-0500

    Owner of building is local attorney, Kenneth Vercammen who handles Municipal Court, Estate Planning & Probate, and Criminal Law. 

NJSA 2C :11-1 . Definitions

 

2C -11-1 . Definitions.
   In chapters 11 through 15, unless a different meaning plainly is required:

   a.    "Bodily injury" means physical pain, illness or any impairment of physical condition;

   b.    "Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ;

   c.    "Deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury;

   d.    "Significant bodily injury" means bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses.

    L.1978, c.95; amended 1979,c.178,s.19; 1981,c.384,s.1; 1995,c.307,s.1.

2C:018-002 Burglary

 

2C:18-2. Burglary a. Burglary defined. A person is guilty of burglary if, with purpose to commit an offense therein he: (1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter; or (2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so. b. Grading. Burglary is a crime of the second degree if in the course of committing the offense, the actor: (1) Purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or (2) Is armed with or displays what appear to be explosives or a deadly weapon. Otherwise burglary is a crime of the third degree. An act shall be deemed in the course of committing an offense if it occurs in an attempt to commit an offense or in immediate flight after the attempt or commission. Amended 1980,c.112,s.2; 1981,c.290,s.18; 1995,c.20,s.3.

2C:017-006 Motor Vehicles

 

2C:17-6 Motor vehicles;
removal or alteration of identification number or mark; possession; penalty

a. A person who removes, defaces, alters, changes, destroys, covers or obliterates any trademark, distinguishing or identification number, serial number or mark on or from any motor vehicle for an unlawful purpose, is guilty of a crime of the third degree.

b. A person who for an unlawful purpose knowingly possesses any motor vehicle, or any of the parts thereof, from or on which any trademark, distinguishing or identification number, or serial number or mark has been removed, covered, altered, changed, defaced, destroyed or obliterated, is guilty of an offense, unless, within 10 days after the motor vehicle or any part thereof shall have come into his possession, he files with the Director of the Division of Motor Vehicles in the Department of Law and Public Safety a verified statement showing: the source of his title, the proper trademark, identification or distinguishing number, or serial number or mark, if known, and if known, the manner of and reason for the mutilation, change, alteration, concealment or defacement, the length of time the motor vehicle or part has been held and the price paid therefor.

If the value of the motor vehicle or parts possessed exceeds $500.00 the offense is a crime of the third degree; if the value is at least $200.00 but does not exceed $500.00 it is a crime of the fourth degree; if the value is less than $200.00 it is a disorderly persons offense.

c. As used in this section, "motor vehicle" includes motor bicycles, motorcycles, automobiles, trucks, tractors or other vehicles designed to be self-propelled by mechanical power, and otherwise than by muscular power, except motor vehicles running upon or guided by rails or tracks.

2C:012-010 Stalking

 

Definitions; stalking designated a crime; degrees 1. a. As used in this act: (1)"Course of conduct" means repeatedly maintaining a visual or physical proximity to a person or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person. (2)"Repeatedly" means on two or more occasions. (3)"Immediate family" means a spouse, parent, child, sibling or any other person who regularly resides in the household or who within the prior six months regularly resided in the household. b.A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family. c.A person is guilty of a crime of the third degree if he commits the crime of stalking in violation of an existing court order prohibiting the behavior. d.A person who commits a second or subsequent offense of stalking against the same victim is guilty of a crime of the third degree. e.A person is guilty of a crime of the third degree if he commits the crime of stalking while serving a term of imprisonment or while on parole or probation as the result of a conviction for any indictable offense under the laws of this State, any other state or the United States. f.This act shall not apply to conduct which occurs during organized group picketing. 3rd degree 3- 5 years $15,000 1 year- 5 year 4th degree 0- 18 months $10,000 1 year- 5 year     There are dozens of other penalties a court can impose, depending on the type of matter. Read  www.njlaws.com/jail_for_crimes_and_disorderly_conduct.html        Plus 2C:12-10.1  permits application for permanent restraining order. 2C:12-10.1. Conviction for stalking, permanent restraining order 3. a. A judgment of conviction for stalking shall operate as an application for a permanent restraining order limiting the contact of the defendant and the victim who was stalked. b. A hearing shall be held on the application for a permanent restraining order at the time of the verdict or plea of guilty unless the victim requests otherwise. This hearing shall be in Superior Court. A permanent restraining order may grant the following specific relief: (1) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim. (2) An order restraining the defendant from making contact with the victim, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim, the victim's employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim. c. The permanent restraining order entered by the court subsequent to a conviction for stalking as provided in this act may be dissolved upon the application of the stalking victim to the court which granted the order. d. Notice of permanent restraining orders issued pursuant to this act shall be sent by the clerk of the court or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency or court. e. Any permanent restraining order issued pursuant to this act shall be in effect throughout the State, and shall be enforced by all law enforcement officers. f. A violation by the defendant of an order issued pursuant to this act shall constitute an offense under subsection a. of N.J.S.2C:29-9 and each order shall so state. Violations of these orders may be enforced in a civil or criminal action initiated by the stalking victim or by the court, on its own motion, pursuant to applicable court rules. Nothing in this act shall preclude the filing of a criminal complaint for stalking based on the same act which is the basis for the violation of the permanent restraining order. L.1996,c.39,s.3. 2C:12-10.2. Temporary restraining order for alleged stalking; conditions 2. a. In any case involving an allegation of stalking where the victim is a child under the age of 18 years or is developmentally disabled as defined in section 3 of P.L.1977, c.200 (C.5:5-44.4) or where the victim is 18 years of age or older and is mentally defective as defined in N.J.S. 2C:14-1, the court may issue a temporary restraining order against the defendant which limits the contact of the defendant and the victim. b.The provisions of subsection a. of this section are in addition to, and not in lieu of, the provisions of section 3 of P.L.1996, c.39 (C.2C:12-10.1) which provide that a judgment of conviction for stalking shall operate as an application for a permanent restraining order limiting the contact of the defendant and the victim. c.The parent or guardian of the child or the person described in subsection a. of this section may file a complaint with the Superior Court in conformity with the rules of court seeking a temporary restraining order against a person alleged to have committed stalking against the child or the person described in subsection a. of this section. The parent or guardian may seek emergency, ex parte relief. A decision shall be made by the judge regarding the emergency relief forthwith. If it appears that the child or the person described in subsection a. of this section is in danger of being stalked by the defendant, the judge shall issue a temporary restraining order pursuant to subsection e. of this section. d.A conviction of stalking shall not be a prerequisite for the grant of a temporary restraining order under this act. e.A temporary restraining order issued under this act shall limit the contact of the defendant and the child or the person described in subsection a. of this section who was stalked and in addition may grant all other relief specified in section 3 of P.L.1996, c.39 (C.2C:12-10.1). f.A hearing shall be held in the Superior Court within 10 days of the issuance of any temporary restraining order which was issued on an emergency, ex parte basis. A copy of the complaint shall be served on the defendant in conformity with the rules of court. At the hearing the standard for continuing the temporary restraining order shall be by a preponderance of the evidence. g.If the court rules that the temporary restraining order shall be continued, the order shall remain in effect until either: (1)the defendant is convicted of stalking, in which case the court shall hold a hearing on the issue of whether a permanent restraining order shall be entered pursuant to section 3 of P.L.1996, c.39 (C.2C:12-10.1); or (2)the victim's parent or guardian or, in the case of a victim who has reached the age of 18, the victim, requests that the restraining order be dismissed and the court finds just cause to do so. L.1999,c.47,s.2.

2C: 20-11F Possessing Anti-Shoplifting Device

 

   a.   Definitions.  The following definitions apply to this section:

   (1)   "Shopping cart"  means those push carts of the type or types which are commonly provided by grocery stores, drug stores or other retail mercantile establishments for the use of the public in transporting commodities in stores  and markets and, incidentally, from the stores to a place outside the store;

   (2)   "Store or other retail mercantile establishment"  means a place where merchandise is displayed, held, stored or sold or offered to the public for sale;

   (3)   "Merchandise"  means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof;

   (4)   "Merchant" means any owner or operator of any store or other retail mercantile establishment, or any agent, servant, employee, lessee, consignee, officer, director, franchisee or independent contractor of such owner or proprietor;

   (5)   "Person" means any individual or individuals, including an agent, servant or employee of a merchant where the facts of the situation so require;

   (6)   "Conceal" means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation;

   (7)   "Full retail value" means the merchant's stated or advertised price of the merchandise;

   (8)   "Premises of a store or retail mercantile establishment" means and includes but is not limited to, the retail mercantile establishment; any common use areas in shopping centers and all parking areas set aside by a merchant or on behalf of a merchant for the parking of vehicles for the convenience of the patrons of such retail mercantile establishment;

   (9)   "Under-ring" means to cause the cash register or other sale recording device to reflect less than the full retail value of the merchandise;

   (10) "Antishoplifting or inventory control device countermeasure" means any item or device which is designed, manufactured, modified, or altered to defeat any antishoplifting or inventory control device;

   (11) "Organized retail theft enterprise" means any association of two or more persons who engage in the conduct of or are associated for the purpose of effectuating the transfer or sale of shoplifted merchandise.

   b.   Shoplifting.  Shoplifting shall consist of any one or more of the following acts:

   (1)   For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.

   (2)   For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.

   (3)   For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.

   (4)   For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.

   (5)   For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof.

   (6)   For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the  merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.

   c.   Gradation.  (1) Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is  $75,000 or more, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000 or more. 

   (2)   Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $500 but is less than  $75,000, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is less than $1,000.

   (3)   Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $200 but does not exceed $500.

   (4)   Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $200.

   The value of the merchandise involved in a violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons, or were committed in furtherance of or in conjunction with an organized retail theft enterprise.

   Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C :43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows:  for a first offense, at least ten days of community service;  for a second offense, at least 15 days of community service;  and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days.

   d.   Presumptions.  Any person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.

   e.   A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover the merchandise by taking the person into custody, may, for the purpose of attempting to effect recovery thereof, take the person into custody and detain him in a reasonable manner for not more than a reasonable time, and the taking into custody by a law enforcement officer or special officer or merchant shall not render such person criminally or civilly liable in any manner or to any extent whatsoever.

   Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the offense of shoplifting as defined in this section.

   A merchant who causes the arrest of a person for shoplifting, as provided for in this section, shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting.

   f.   Any person who possesses or uses any antishoplifting or inventory control device countermeasure within any store or other retail mercantile establishment is guilty of a disorderly persons offense.