NJ police must meet tougher standard to prove drivers are high, court rules

The testimony of a "drug recognition expert" is subject to the same standards for scientific reliability as any other expert witness under a new standard adopted by the New Jersey Supreme Court, the latest step in a nearly decade-long legal battle over the reliability of roadside tests to determine whether a driver was high behind the wheel.

In a unanimous ruling released Friday, Chief Justice Stuart Rabner said that judges must consider whether the testimony of drug recognition experts is reliable before qualifying them as expert witnesses in DUI or DWI cases, such as the two cases at the center of New Jersey v. Olenowski, which has been litigated since 2015.

Until now, drug recognition experts were held up to the "Frye standard," a legal precedent that allows such expert testimony to be admitted as long as it's "generally accepted" as reliable in the scientific community. But there is no such scientific community when it comes to drug recognition experts — only officers and law enforcement agencies who rely on them to prosecute cases.

Rabner ruled they should be held to the Daubert standard, a legal precedent that casts judges as gatekeepers when it comes to expert testimony, allowing them to examine just how reliable or scientific that testimony might be.

"Daubert is a better standard for testing scientific reliability," said attorney John Menzel, who represented the New Jersey State Bar Association as an amicus party in the Olenowski case. "Science is a very rapidly evolving thing. The focus of Daubert is on the methodology to make sure it's reliable and scientific, not just based on the idea that people have always relied on it."

Expert witnesses are already held to the Daubert standard in federal court and an increasing number of state courts.

The fate of the drug recognition expert program is still up in the air. Rabner's ruling didn't put Olenowski to bed; rather, it remanded the issue back to Judge Joseph Lisa, appointed by the Supreme Court as the case's special master. In August, Lisa ruled it satisfied the older Frye standard. Now, he'll be tasked with examining whether it meets the Daubert standard.

"The case isn't over, but this is a huge shift in the burden of admissibility for DREs in courts," said Rich Lomurro, a Freehold criminal defense attorney, who frequently represents clients charged with DUIs. "The angle they hold the flashlight. The way they press the skin to look for firmness. There's a methodology to all that, and it has to be done a correct way otherwise the whole test is out the window."

The New Jersey Attorney General's Office did not immediately return a request for comment.

The Olenowski case revolves around one central question: Do these roadside tests prove objectively that a driver was under the influence of drugs while behind the wheel?

Unlike alcohol, there is no objective test — such as a breath test — to determine whether a person is currently high. Drug recognition experts are called to the scene to administer a 12-step test, 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. If they believe the person is under the influence, they can order a toxicological test.

According to Lisa's report on the issue, drug recognition experts ordered toxicology reports for 2,551 cases after determining the presence of drugs in 2017 and 2018. Of those reports, 82 were false positives, with no drugs determined. Another 92 tests were false negatives, in which the officer did not conclude the presence of drugs but the toxicology report showed a positive test.

But that doesn't mean the other 93% of cases were valid, Menzel said. A positive test for any drug, including prescription medication, is considered a match, for example.

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

The simple presence of a drug in a defendant's system doesn't prove they were intoxicated, Menzel said.

"You can't distinguish a normal person from an impaired person, except in the most extreme cases," he said. "The problem is they're trying to fit all these facts to paint a picture that someone's guilty, when those facts don't prove it at all. It's voodoo science, where you try to make it sound scientific so a judge will believe it. But it's not science."

As of 2022, there were 1,764 certified drug recognition experts in New Jersey, according to the New Jersey State Association of Chiefs of Police, about 5.7% of all police officers in the state. In order to be certified, an officer must already be certified as an alcohol breath test operator, with completed training in DWIs and field sobriety.

They must also complete the New Jersey State Police's alcohol drug testing unit program, followed by 80 hours of drug recognition expert education and 12 supervised evaluations over a 60 to 90 day period.

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, drug recognition experts 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 make his parents very proud. Contact him at mdavis@gannettnj.com or @byMikeDavis on Twitter.

This article originally appeared on Asbury Park Press: Drug recognition expert new standards adopted by NJ Supreme Court