Driving High? Justices to Weigh Controversial Method for Testing Stoned Drivers

Testimony of specially trained police officers concerning whether a driver is impaired by drugs should be admissible in criminal trials, according to a retired Appellate Division judge’s report submitted to the New Jersey Supreme Court Thursday.

The recommendation in a 384-page report by special master Joseph Lisa, who held hearings on the drug-recognition expert (DRE) protocol, could pave the way for the Supreme Court to allow such testimony to be admitted without a challenge to its validity in impaired-driving trials.

Lisa’s finding that the DRE methodology is reliable comes after the Office of the Public Defender, the New Jersey State Bar Association, the Association of Criminal Defense Lawyers-New Jersey and other attorney groups said the DRE method is not accepted by the scientific community.

Retired Appellate Division Judge Joseph Lisa/photo by Carmen Natale/ALM

“We are, of course, disappointed by the special master’s final report because we do not believe that drug recognition experts base their opinions on reliable science,” said Jennifer Sellitti, a spokeswoman for the Office of the Public Defender. “We are in the process of reviewing it carefully so that we can challenge it appropriately in the New Jersey Supreme Court.”

Retail Cannabis

Policing stoned driving is a particularly timely topic because New Jersey is in the midst of the rollout of retail sales of recreational cannabis.

Some researchers have found that states where cannabis is made legal experience an increase in crashes and fatalities. Any uptick in crashes in New Jersey could cast a shadow on the state’s fledgling cannabis industry.

New Jersey has prosecuted drivers based on DRE before, but when Michael Olenowski was charged with driving while impaired in two separate incidents based on opinions of DREs that he was driving under the influence of drugs, he moved to bar the DRE testimony. His motions were denied in municipal court and the Law Division, which found him guilty in both cases. The Supreme Court accepted Olenowski’s petition for certification, and concluded that a hearing should be conducted pursuant to Frye v. United States, a 1923 U.S. Supreme Court case governing admissibility of scientific evidence. In 2019, Lisa was appointed as special master and instructed to conduct a Frye hearing on admissibility of DRE testimony.

Olenowski died while the special master hearing was underway, but the Supreme Court is  expected to take up Lisa’s report and allow interested parties to submit briefs and testify before it rules on the evidentiary issue.

Unlike the 0.08 blood-alcohol concentration standard for measuring driving under the influence of alcoholic beverages, no universal standard exists for driving while impaired by drugs. The DRE model calls for police officers to conduct a 12-part test on a subject before offering findings on whether that person is driving while stoned. The DRE examination includes examinations of the subject’s eyes, evaluating muscle tone, taking multiple readings of the subject’s pulse, examining the subject for needle marks, and asking the subject to touch a finger to his or her nose and to balance on one leg.

Lisa heard testimony from medical experts, prosecutors and defense lawyers and examined data from past DRE-based arrests during his 42-day hearing.

“As with all evidence,” Lisa wrote, “DRE evidence and the DRE opinion will be tested by cross-examination and the fact finder will ascribe to it such credibility assessments and weight allocations as he or she deems appropriate.”

Evan Levow, a Cherry Hill defense lawyer who represented the amicus DUI Defense Lawyers Association before Lisa, said the special master’s report would not significantly change the way impaired-driving cases are defended.

“By saying it’s scientifically reliable doesn’t mean the DRE’s opinion is gospel. It just means it can come into evidence now. Assuming that the Supreme Court adopts the opinion, now there’s no longer the claim that DRE is unreliable on the whole, but applied to a specific circumstance, it could be unreliable. It’s generally accepted now, so that takes away several layers of litigation,” Levow said.

NJSBA President Jeralyn Lawrence issued a statement about the Lisa report.

“The New Jersey State Bar Association sought to participate in this matter because of the critical importance of ensuring that individuals charged with crimes are provided with a fair trial and that evidence relied upon to convict an individual of driving under the influence is valid,” Lawrence said. “We were honored to be included in the special master’s hearings and are examining today’s report closely to highlight the technique’s limitations. The bar association will continue its advocacy in this case concerning these important issues when it files additional comments to the New Jersey Supreme Court, which will make the final decision.”