How accurate are drug recognition experts? NJ Supreme Court could decide soon

TRENTON - The testimony of drug recognition experts − police officers trained to determine, through a series of roadside tests, whether a driver is intoxicated due to drug use − should be admissible as evidence, according to a special master report submitted to the New Jersey Supreme Court today.

It will likely be months before the New Jersey Supreme Court reaches a decision in New Jersey v. Olenowski, a potentially landmark case with potential ramifications for both driving and workplace impairment laws in the wake of the legalization of marijuana.

But in a nearly 400-page report, appellate Judge Joseph Lisa, appointed as a special master to oversee a lengthy hearing, determined that testimony by drug recognition experts, or DREs, is reliable and admissible as evidence of intoxication.

"The DRE program replicates generally accepted medical practices in identifying the presence of impairing drugs and the likely category of those drugs in an individual exhibiting indicia of impairment," Lisa wrote.

The report is not a legal decision; now, both the state and attorneys for Olenowski's estate, as well as the numerous groups who filed amicus briefs for both sides, have 30 days to file briefs in response to the report, with another 10 days beyond that to file reply briefs to each other's arguments.

Only then will the Supreme Court schedule oral arguments and, eventually, decide the case.

What is the state of drug testing for legal weed?

Unlike alcohol, there is no objective test to determine whether a person is currently high. A urine test could come back positive even if a person consumed cannabis a month earlier. A blood test can pinpoint the presence of tetrahydrocannabinol − or THC, the psychoactive component in cannabis − to within 12 to 24 hours, but no widely available test can determine immediate intoxication.

Employers are facing the same conundrum: Under the New Jersey legal weed laws, employers have the right to maintain a drug-free workplace, but a simple failed drug test isn't enough to take action against an employee suspected of being intoxicated on the job.

Instead, the employee must also undergo a physical examination by a "workplace impairment recognition expert," or WIRE. But the New Jersey Cannabis Regulatory Commission is yet to release the standards those WIREs must follow.

At the commission's June 30 meeting, CRC Executive Director Jeff Brown said "guidance" would be issued "very imminently."

Lisa's specific task was to determine whether DRE evidence "replicated" the same processes and standards put in place by medical and scientific technicians, such as EMTs. He based his ruling on both the testimony of experts, including independent doctors not associated with law enforcement and an analysis of two years of New Jersey DRE data.

What do drug recognition experts do?

In 2017 and 2018, DREs ordered toxicology tests for 2,551 drivers after determining the presence of drugs. Only 82 were false positives, with no drugs determined. Another 92 false negative cases were determined, in which the officer did not conclude the presence of drugs but a toxicology report later showed a positive test.

DREs are trained to administer a 12-step test when called to the scene, starting with an alcohol breath test and interview by the officer on the scene, progressing to eye and physical exams - such as standing on one leg - and eventually to a toxicological test.

"Utilizing the DRE protocol, New Jersey's DREs have performed very well in identifying drivers who are unable to drive a motor vehicle safely because of the presence in their system of impairing drugs," Lisa wrote.

The namesake of the case, Michael Olenowski, was arrested for driving while intoxicated in two separate incidents in 2015. In the first case, an alcohol breath test showed a blood alcohol content of .04%, half the legal limit. The second time, the test didn't show any alcohol in his blood.

But in both cases, DREs determined he was under the influence of both stimulant and depressant drugs and arrested him. He was convicted in both cases., but appealed.

Both appeals were overturned by lower courts before Olenowski, who died in 2020, appealed to the Supreme Court.

Mike Davis has spent the last decade covering New Jersey local news, marijuana legalization, transportation and a little bit of everything else. He's won a couple of awards that his parents very proud. Contact him at mdavis@gannettnj.com or @byMikeDavis on Twitter.

This article originally appeared on Asbury Park Press: How accurate are drug recognition experts? NJ could decide