NJSBA amicus roundup: Supreme Court hears arguments on drug influence evaluations
State v. Olenowski
Drug recognition expert (DRE) opinions based on drug influence evaluations (DIEs) are not generally accepted within the scientific community under Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), the New Jersey State Bar Association (NJSBA) said in its amicus curiae argument to the state Supreme Court last week. NJSBA member John Menzel argued the matter before the court, urging the court to exclude the DIE evidence in the case and remand the matter for the development of an appropriate foundation before the evidence can be admitted. The brief was written by Menzel, Joshua H. Reinitz, and NJSBA past president Miles S. Winder III.
The court focused on the question of why a special master should not be appointed to review whether DIEs meet the standards for admissibility, noting competing studies and scholarly writings on the issue, the credibility of which the court cannot evaluate without further hearings.
The subject lawsuit arises from Olenowski’s convictions for driving while intoxicated, which occurred on two separate occasions in the same year. He drew a reading of .04 percent blood alcohol content the first time and a zero percent reading the second, but was visibly impaired, according to the officers who arrested him and the DREs who evaluated him. The trial court upheld the convictions, holding that DRE evidence was “generally acceptable and reliable in the scientific community.” The decision was upheld by the Appellate Division.
In its brief, the NJSBA argued that neither the DIE technique nor the DRE opinion are generally accepted in the scientific community or sufficiently reliable to indicate that Olenowski was driving under the influence. “The NJSBA asks this court to declare the DIE technique and DRE opinion derived therefrom inadmissible for any purpose unless its proponent, the state, lays appropriate foundation,” the NJSBA wrote. “Such a ruling would provide guidance to trial courts and avoid the errors committed in the present case.”
Source: https://tcms.njsba.com/PersonifyEbusiness/Default.aspx?TabID=1820&utm_source=direct&utm_medium=email&utm_campaign=NJSBA
