Criminal Law- Recent Cases NJ Kenneth Vercammen Law Office. 732-572-0500 Edison, NJ: November 2023

State v. Michael Olenowski Decided November 15, 2023 (A-56-18)

SABATINO, P.J.A.D. (temporarily assigned), writing for the Court.

In State v. Olenowski (Olenowski I), 253 N.J. 133 (2023), the Court adopted for criminal cases a non-exclusive, multi-factor test for the reliability of expert testimony patterned after the standard established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court now considers whether Drug Recognition Expert (DRE) testimony is reliable and admissible under that standard. The Court also considers the appropriate standard of review for Daubert-based expert reliability determinations in criminal appeals.

N.J.S.A. 39:4-50 prohibits impaired driving, whether the impairment is caused by alcohol or one or more drugs. A driver whose blood alcohol concentration (BAC) level exceeds the 0.08% limit prescribed by that statute is guilty -- per se -- of driving while intoxicated. But there is no equivalent per se violation in this state for persons who drive with impairment-causing drugs in their system.

Detecting and proving that a driver ingested and was under the influence of drugs while behind the wheel can be challenging. To enable such detection, law enforcement officials and researchers developed a twelve-step protocol:

(1) a breath alcohol test;
(2) an interview of the arresting officer;
(3) a preliminary examination and first pulse check;
(4) a series of eye examinations;
(5) four divided attention tests;
(6) a second examination and vital signs check;
(7) a dark room examination of pupil size and ingestion sites; (8) an assessment of muscle tone;
(9) a check for injection sites;
(10) an interrogation of the driver by the DRE;

(11) a final opinion, based on the totality of the examination, about whether the driver is under the influence of a drug or drugs; and

(12) a toxicological analysis.

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 counsel 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 of the amici advocated that the Court adopt the Daubert standard, similar to 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.

HELD: 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. Here, the extensive record substantiates that DRE testimony sufficiently satisfies the Daubert criteria to be admissible, with the following four limitations and safeguards:

* The DRE may opine only that the evaluation is “consistent with” the driver’s ingestion or usage of drugs, not that it was actually caused by drugs.

* If the State fails to make a reasonable attempt to obtain a toxicology report without a persuasive justification, the DRE testimony must be excluded.

* The defense must be afforded a fair opportunity to impeach the DRE.
* Model instructions to guide juries about DRE evidence should be considered.

1. Most evidentiary rulings are reviewed for an abuse of discretion. In Accutane, the Court held that trial courts’ expert reliability determinations should be reviewed under that standard in civil matters. See 234 N.J. at 392. In criminal law, however, a trial court’s reliability determination under Frye -- i.e., its determination of whether the relevant scientific community generally accepts a scientific theory, test, or technique -- was accorded less deferential review than other evidentiary decisions. Going forward, in New Jersey criminal and quasi-criminal cases in which the trial court has admitted or excluded an expert witness based upon Daubert reliability factors, appellate courts shall review that reliability determination de novo. However, other case-specific determinations about the expert evidence -- such as whether the witness has sufficient expertise, whether the evidence can assist the trier of fact, and whether the relevant theory or technique can properly be applied to the facts -- should be reviewed for an abuse of discretion. (

2. The United States Supreme Court identified in Daubert a list of four factors for assessing reliability of an expert’s methodology under Fed. R. Evid. 702:

(1) whether the scientific theory or technique can be, or has been, tested; (2) whether it has been subjected to peer review and publication;

(3) the known or potential rate of error as well as the existence of standards governing the operation of the particular scientific technique; and

(4) general acceptance in the relevant scientific community.

Daubert made clear that the factors are non-exclusive and that the reliability inquiry is “flexible,” signaling that other considerations may also be pertinent. See 509 U.S. at 594. For ease of discussion in this particular case, the Court reorganizes the Supreme Court’s listing of Daubert factors in a few ways and applies them in this sequence: (A) adequacy of standards; (B) publication and peer review; (C) testability and error rate; and (D) general acceptance.

3. Adequacy of Standards. The twelve-step DRE process is elaborate and standardized. It is grounded in a program that has been used across the nation and abroad for decades and is periodically modified. The Court reviews counter- arguments, including the concern that DREs are neither physicians nor medical professionals, and explains why they do not alter its conclusion.

4. Peer Review and Publication. The Special Master appropriately considered not only the existence of roughly two dozen studies but also their substantive content and conclusions. He determined that they “support the State’s position that the DRE protocol has consistently been found to be a reliable method for detecting impairment by drugs.” Although the studies have certain limitations, the Court holds that they meet the Daubert factor of publication and peer review.

5. Testability and Error Rate. “Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” Daubert, 509 U.S. at 593. The term “ordinarily” conveys that a judge’s findings of testability and reasonably low error rates from test results are expected -- but not always required -- elements of a proponent’s reliability showing. As the Special Master recognized, there are inherent practical limitations within the DRE program that complicate efforts to test the program results empirically and to obtain meaningful error rates. Constitutional, ethical, and practical constraints make the DRE program less “testable” and the error rate less “knowable” than the ideal. After reviewing the New Jersey data in the record, the Court concludes that the testability and false- positive error rate aspects of the Daubert analysis are largely inconclusive but finds that the inconclusiveness should not categorically bar admission of this useful evidentiary source. The Court rejects the assertion that testability and error rates are categorically the most important Daubert factors.

6. General Acceptance. For many years, the DRE protocol has been widely and regularly used across this country and abroad. No state has discontinued it, and no state’s highest court has nullified it. The protocol has been studied multiple times and periodically revised and enhanced. Although it has imperfections, the protocol has stood the test of time in its widespread acceptance.

7. Many facets of the DRE protocol weigh in favor of its reliability, but the protocol has several weaknesses as well. It does not establish that a driver is actually impaired, or that the drug categories identified by the DRE are definitively the cause of any such impairment. And there are palpable risks of confirmation bias when a DRE officer administers the protocol, particularly in the more subjective aspects of the examination. Thus, although Court finds DRE testimony sufficiently reliable to be admitted in our courts, it adopts several limitations on the admissibility and probative use of a DRE’s opinion in criminal and quasi-criminal cases:

First, a DRE is only allowed to opine in court that the protocol has presented indicia that are “consistent with” the driver’s usage of certain categories of drugs. The DRE’s expert opinion testimony must not go further than that. Proof of consistency can be pertinent as one component within the totality of the evidence to support an inference that drugs caused a driver’s impairment.

Second, a toxicology report corroborating a DRE’s opinion is important evidence. DRE officers must make a reasonable attempt to obtain a toxicology report when it is feasible to do so -- and preferably to obtain a blood sample rather than a urine sample -- when their protocol indicates at Step 11 an opinion of consistency with drug use. If the court finds no reasonable attempt was made, despite its feasibility, the DRE evidence shall

be excluded. However, if the State establishes a reasonable justification for the lack of a toxicology report, then the DRE evidence is admissible, subject to defense impeachment and counterproofs.

Third, if the trial court admits DRE evidence for the State, the defense shall have a fair opportunity to impeach or rebut it through cross-examination of the DRE and with counterproofs.

Fourth, it may be beneficial for the court to provide jurors with an explanatory instruction about the DRE evidence, such as the consistency limitation. The Court refers this subject to the Model Criminal Jury Charges Committee for its consideration.

A positive DRE opinion at Step 11 is not dispositive of a driver’s guilt of driving under the influence of drugs. Unlike a BAC reading of .08% or more in a drunk driving case, the DRE’s opinion is not used as a per se test of guilt. Instead, the DRE testimony is just one part of the evidence as a whole, and it can be amplified or rebutted. The State would have a much steeper burden to prove a driver’s guilt when it lacks corroborating proof from a toxicology report.

The reports and findings of the Special Master are ADOPTED AS MODIFIED. Olenowski’s convictions are VACATED.

IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF K.M.G.

In this appeal of first impression, the court must determine whether the "clean slate" statute, N.J.S.A. 2C:52-5.3, which permits an expungement of a New Jersey criminal record if ten years have passed "from the date of the person's most recent conviction," applies to a conviction from another state. (Emphasis added). The trial court entered an order expunging petitioner's New Jersey criminal record after determining her 2017 Virginia misdemeanor conviction did not preclude eligibility for expungement under the "clean slate" statute because an out-of-state conviction does not constitute a "most recent conviction." The State contends the trial court erred in its interpretation of the "clean slate" statute, arguing petitioner's Virginia conviction must be considered, and because it was entered within ten years of her petition for expungement, her petition should have been denied.

The court reverses because the text of the "clean slate" statute and related expungement statutes do not support the trial court's interpretation to preclude consideration of an out-of-state conviction from the phrase "most recent conviction." Moreover, such interpretation defies common sense given the "clean slate" statute's purpose to expunge a criminal record of an applicant who has not violated the law within ten years of their last New Jersey conviction. Consequently, petitioner's Virginia offense presently disqualifies her from expungement of her New Jersey criminal record under the "clean slate" statute.