Daubert Standard in Criminal Appeals: DRE Testimony Admissibility and Review


Olenoswski Decision 11-15-23.pdf

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

The document is a syllabus summarizing the court’s opinion in State v. Michael Olenowski. It discusses the court’s consideration of whether Drug Recognition Expert (DRE) testimony is reliable and admissible under the Daubert standard, as well as the appropriate standard of review for Daubert-based expert reliability determinations in criminal appeals. The document outlines the twelve-step DRE protocol in detail, and discusses the requirements for establishing guilt under N.J.S.A. 39:4-50. It also addresses the admissibility of lay testimony in cases of alcohol intoxication vs. marijuana intoxication.

The court initially granted certification to determine whether DRE testimony is admissible under the Frye standard, but found the record insufficient to make that determination. The court then asked for supplemental briefing on whether it should adopt the Daubert standard in criminal cases. In Olenowski I, the court adopted a “Daubert-type standard” for determining the reliability of expert evidence in criminal and quasi-criminal cases.

The document discusses the proceedings before the Special Master, who concluded that the DRE protocol satisfies the Daubert standard. The court holds that Daubert-based expert reliability determinations in criminal appeals will be reviewed de novo, while other expert admissibility issues are reviewed under an abuse of discretion standard. The court also discusses how different states review reliability determinations, and the various perspectives of legal commentators on the standard of review issue.

The document goes into detail about the adequacy of standards and the importance of peer review and publication, as well as the various studies that support the reliability and accuracy of the DRE protocol. It also addresses some limitations of these studies, including the fact that the sample of drivers tested is skewed, laboratory simulations cannot replicate all twelve steps, and there are ethical and legal constraints.

The court ultimately finds that DRE testimony is admissible, with four limitations and safeguards, and cites case law from other jurisdictions that have upheld its admissibility and reliability. However, Justice Pierre-Louis dissents, arguing that the majority has altered the Daubert factors and that DRE evidence is not admissible under N.J.R.E. 702. The dissent also discusses the potential error rates associated with the DRE protocol, and the lack of uniformity in how the protocol is applied.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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