On February 17, 2023, the New Jersey Supreme Court decided the latest round of appeals in the Morris County case of State v. Michael Olenowski. The principal issue concerned the appropriate standard to evaluate the admissibility of expert “drug recognition” evidence under N.J.R.E. 702.
Chief Justice Rabner wrote for the unanimous court in relevant part: In this opinion, the Court reconsiders. For decades, the admissibility of expert evidence in New Jersey criminal cases has been analyzed under the test outlined in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). That standard turns on whether the subject of expert testimony has been “generally accepted” in the relevant scientific community. The Court has moved away from the Frye test over time, shifting in civil cases toward an approach that focuses directly on reliability by evaluating the methodology and reasoning underlying proposed expert testimony — a standard similar to the one outlined in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).
After an extensive evidentiary hearing before a Special Master, the Court asked the parties and amici here to submit their views on whether to depart from Frye and adopt the principles of Daubert in criminal cases. The Court granted certification in this matter, 236 N.J. 622 (2019), to decide whether the testimony of a certified Drug Recognition Expert (DRE) is admissible at trial and, if so, under what circumstances.
DREs apply a twelve-step protocol to assess whether a person is impaired. At trial, the prosecutor introduced DRE testimony to prove that defendant had been driving while under the influence. The Municipal Court Judge convicted defendant; the Superior Court upheld the use of DRE evidence under Frye and affirmed; the Appellate Division also affirmed. After oral argument, the Court found the record inadequate to test the validity of DRE evidence and appointed the Honorable Joseph F. Lisa as a Special Master to conduct a plenary hearing. 247 N.J. 242, 244 (2019).
A DWI is an interesting test case to use fore whether the traditional criminal or civil rules regarding expert testimony should apply. A DWI is considered “quasi-criminal” since its penalties resemble criminal penalties even though it is classified as a motor vehicle offense.