The New Jersey Supreme Court continued in relevant part: Defendant Michael Olenowski was convicted of drug-impaired driving based in part on DRE evidence. His convictions were upheld on appeal, and the Court granted certification to determine whether DRE testimony is admissible under the “general acceptance” admissibility standard established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 236 N.J. 622 (2019). Finding that the record was not sufficient to make that determination, the Court asked a Special Master to conduct a hearing. 247 N.J. 242, 244 (2019). The Special Master concluded that DRE evidence should be admissible under Frye. In subsequent briefing to the Court, several attorneys focused upon error rates associated with DRE evidence. Because error rates are expressly considered under Daubert, but not Frye, the Court asked for supplemental briefing on “whether this Court should depart from Frye and adopt the principles of Daubert in criminal cases.” Both parties and nearly all the amici advocated that the Court adopt the Daubert standard, like its previous adoption of Daubert-based principles for civil cases in In re Accutane Litigation, 234 N.J. 340 (2018).
In Olenowski I, the Court adopted a “Daubert-type standard” for determining the reliability of expert evidence in criminal and quasi-criminal cases and remanded this matter to the Special Master to apply that standard. 253 N.J. at 153, 155. The Special Master concluded that the twelve-step DRE protocol satisfies the reliability standard of N.J.R.E. 702 when analyzed under the methodology-based Daubert Accutane standard. The Court now considers that conclusion. Daubert-based expert reliability determinations in criminal appeals will be reviewed de novo, while other expert admissibility issues are reviewed under an abuse of discretion standard.
The aforementioned “12-step DRE protocol” implies that there is a sophisticated and trustworthy methodology underlying a DRE’s assessment. The reality is that step (10), the interrogation of the defendant provides the basis for the DRE opinion in most cases. They get the defendant to admit to consuming a certain substance and then reach a hindsight conclusion consistent with the defendant’s admission.