Drug Recognition Experts

In a recent decision by the NJ Supreme Court in the case of State v. Olenowski, the court tackled the question of whether testimony from Drug Recognition Experts (DREs) should be allowed in cases involving drug-impaired driving. The court adopted a set of rules to decide if this kind of expert testimony is reliable, similar to what’s used in civil cases.

The case involved Michael Olenowski, who was convicted of driving under the influence of drugs based on evidence provided by a DRE. The court looked closely at the twelve-step process these experts use to determine if a driver is impaired by drugs. Ultimately, the court said that decisions about the reliability of DRE testimony in criminal appeals will be reviewed with a fresh perspective.

While the court said that DRE testimony can be used, they added four restrictions:

1. DREs can only say that their evaluation is “consistent with” a driver using drugs, not that it definitely was caused by drugs.
2. If the police don’t reasonably try to get a toxicology report (a test to check for drugs), the DRE’s testimony might not be allowed.
3. The defense (the person accused of a crime) should have a fair chance to challenge the DRE’s testimony.
4. The court suggested giving juries specific instructions about how to consider DRE evidence.

The court highlighted that a positive opinion from a DRE doesn’t automatically mean a driver is guilty. It’s just one piece of evidence, and the State (prosecution) has a tougher job if they don’t have other proof, like a toxicology report.