New Jersey State Bar Association headquarters at 1 Constitution Square, New Brunswick, NJ. Credit: Google

Capitol Report

NJSBA to argue for Daubert standard for criminal cases

On Jan. 17, the New Jersey State Bar Association (NJSBA) will urge the state Supreme Court to find that, for purposes of DWI prosecutions, the Drug Influence Evaluation technique and the Drug Recognition Evaluation (DRE) opinion derived from the technique are unreliable, regardless of whether the technique is analyzed under the Frye or Daubert standards. The NJSBA is appearing as amicus curiae in State v. Olenowski, which addresses the issue of whether the testimony of Drug Recognition Experts (DRE) employing Drug Influence Evaluations (DIE) in matters involving driving under the influence (DUI) is scientifically reliable. John Menzel, who also authored the brief, will argue the matter on behalf of the NJSBA.

The case started before the pandemic with two charges of driving while under the influence of drugs. The convictions were based on the admission of DRE opinion testimony, which is central to the controversy. The Supreme Court concluded that a Frye hearing should have been conducted and directed the appointment of a special master to conduct the hearing and issue a report for further consideration of the admissibility of DRE evidence. The special master issued its report in August using the Frye standard and briefing by the parties and amici followed in response to that report. The Supreme Court raised a new question as to whether the Court should depart from the Frye standard and adopt the principles of Daubert in criminal cases.