How Does the State Prove a Charge of Driving Under the Influence of Drugs?

The New Jersey Supreme Court just decided the case of State v. Olenowski, which allows Drug Recognition Experts (“DRE”) to testify in Drug DUI cases in New Jersey. Here is everything you need to know about how prosecutors prove someone was Driving Under the Influence of Drugs, DREs and State v. Olenowski.

Ever wonder how law enforcement can determine you are driving under the influence of drugs (“DUID”) in a similar way to alcohol? Well, there is still no breath sample for DUID, but the New Jersey Supreme Court recently ruled Drug Recognition Expert (“DRE”) testimony may be admissible in court to prove one’s guilt beyond a reasonable doubt.

In an alleged driving under the influence of alcohol case, the State will try and prove the defendant’s guilt through evidence of traffic infractions, Standardized Field Sobriety Tests (“SFSTs”), a breath sample reading or toxicology report, and the officer’s testimony at trial. In these cases, an officer’s testimony that a defendant is under the influence of alcohol is a “lay opinion” as opposed to an “expert opinion.” An officer is not an expert, however the Courts have provided that alcohol and its deleterious effects are so commonly known that an officer who witnesses those under the influence on a regular basis can testify to what he or she believes to be those signals of intoxication.

Around the 1970s, DRE training began as a part of the Drug Evaluation and Classification Program (“DECP”). Still today, there is no definitive way to determine if a person is DUID. The State therefore uses a law enforcement officer who is a trained DRE to analyze a driver, write a report, and testify as an expert at trial in an attempt to prove the driver’s guilt beyond a reasonable doubt.

In State v. Olenowski, the New Jersey Supreme Court ruled in a 5-2 decision that DRE testimony sufficiently satisfies the admissibility standard set forth for other expert testimony. Chief Justice Rabner joined in Justice Pierre-Louis’s dissent. The standard analyzed is called the Daubert standard, and is a criteria established by the Courts, and adopted by New Jersey, to determine the admissibility of expert testimony. The four Daubert factors (as altered by the Olenoswki Court) are:

(A) Adequacy of Standards;
(B) Publication and Peer Review;
(C) Testability and Error Rate; and
(D) General Acceptance in the Scientific Community

The Olenowski Court safeguards or limits DRE testimony admissibility with the following instructions:

(1) The DRE may not prove “too much.” Impairment must be proven beyond a reasonable doubt through independent evidence. A 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;

(2) If the State fails to make a reasonable attempt to obtain a toxicology report without a persuasive justification, the DRE testimony must be excluded;

(3) The defense must be afforded a fair opportunity to impeach the DRE; and

(4) *Only for jury trials* Model instructions should be considered to guide juries about DRE evidence.

The Olenowski Court’s analysis involved an examination of the Daubert factors as related to the issue of DRE. First, the Court examined the adequacy of the standards of the DECP. Despite the Office of the Public Defender (“OPD”) arguing that the DECP has inadequate standards as a DRE simply goes through a “checklist” of steps, the Court maintained the DECP is standardized and maintains a continuing process.

Next, the Court looked at the publication history and peer-reviewed nature of DREs. It should be noted that there has not yet been a published study that specifically examines the New Jersey DRE program, yet the Court relied on retrospective data spanning the entire United States and other States’ research on the issue. Third, the Court examined the testability and error rate of DREs. The Court lists numerous constraints that make the DRE program less “testable” and the error rates less “knowable” than what is ideal and relies on the retrospective data to find that the DRE program satisfies this factor. Lastly, the Court found that the DRE program satisfies the fourth factor of general acceptance in the scientific community based on several previous analyses done throughout the country in recent years.

DRE testimony is now admissible at trial after the New Jersey Supreme Court’s ruling. Laws are fluid and can change as time goes on. Currently, drivers are still able to refuse a DRE examination. The Olenoswki decision may influence whether these laws remain the same.

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When you are charged with a Drug DUI, you may be unsure where to turn first. Get the answers to all your questions about your Drug DUI matter and ensure that your rights are protected throughout the proceedings. Contact our office today at (609) 216-7400 or contact us online and learn what we can do to help.