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The original item was published from 2/24/2023 10:17:49 AM to 2/24/2023 10:20:32 AM.

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Posted on: February 24, 2023

[ARCHIVED] NJ Supreme Court Sends DRE Issue Back to Special Master

The fate of DREs as expert witnesses to help identify and prosecute suspected DUI and DWI cases remains unknown after the New Jersey Supreme Court changes standards for their acceptance in court, and remands issue back to special master. 

Last week, the Supreme Court of New Jersey released an opinion in State v. Michael Olenowski, a case dealing generally with the appropriate standard to be used to evaluate the admissibility of expert testimony, and more specifically whether testimony from a trained Drug Recognition Expert (DRE) is admissible at trial and, if so, under what circumstances. 

For decades New Jersey courts have, in criminal matters, used what is known as the Frye test when analyzing whether expert testimony should be admitted. Under the Frye test expert testimony is allowable if it’s “generally accepted” as reliable in the scientific community. The Frye test offer judges less flexibility when evaluating admissibility of expert testimony than what is used in civil matters. This test can also be difficult to apply in certain types of expert evidence, including novel areas such as with DREs. 

An alternative approach, which is being more widely adopted across the country and has been used in civil matters, is what is known as the Daubert standard. Daubert empowers courts to directly examine the reliability of expert evidence and consider a broader range of relevant information when determining the admissibility of expert testimony.     

The Court is now departing from use of the Frye test in favor of a more flexible Daubert-type standard when evaluating the admissibility of expert testimony in criminal and quasi-criminal matters. While the Court adopted a new standard to be used, it did not rule on whether or not testimony from DREs would be acceptable. Instead, the Court remanded the matter back to the Special Master that has been assisting with the case to assess the reliability and admissibility of DRE evidence under the new standard. 

The Court will rule on the admissibility of DRE testimony in DUI and DWI cases once the Special Master’s report is complete and has been reviewed. Until then, the admissibility of DRE testimony in these matters remains unknown.    

Contact: Frank Marshall, Esq., Associate General Counsel, fmarshall@njlm.org, 609-695-3481, x137. 

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