DWI —Drug Recognition Expert and Convictions How I can Help You

STATE OF NEW JERSEY,   v. MICHAEL OLENOWSKI, Argued October 23, 2018 – Decided November 27, 2018

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

This decision is from November of 2018 and has been appealed to the N.J. Supreme Court.  The reason I am writing about this case again today, November 14, 2019,  is because a Supreme Court decision is pending.  The key to any future decision may in fact be the ‘specialized’ training of the police and their ability to arrive at a generalized conclusion that the driver of a vehicle is ‘under the influence’ and their faculties so effected by ‘something’ which effects their operation of a motor vehicle on the roads.  In this case the two events outlined in the facts below reveal: a) a level of impairment testified to by the officers and,  b) adequate physical manifestations observed by that officer during the motor vehicle stop.  The Supreme Court will rely upon   that ‘specialized training’ yet below the level of a ‘full expert’ like a doctor or engineer with college and graduate school degrees in order to maintain stability in the DWI enforcement case law and law enforcement tilt.  Remember, based upon all of the criminal case law regarding motor vehicle stops and the ‘totality of the circumstances’ the police are able to stop a motor vehicle on the road for any contrived reason at any time without limitation.  Once the police are ‘lawfully’ next to a car…. they can then commence their DWI investigation.  The facts below reveal what they look for and memorialize in their notes for future testimony.  The New Jersey Supreme Court will continue the line of cases outlining the police’s ability to testify in these matters in order to NOT overburden law enforcement with additional hurdles to keep impaired drivers off the roads of the state when weed becomes legal.  A read of the other line of cases (civil and criminal) concerning the alcohol and the ‘death and carnage’ on the highways of the state will reveal a much larger public safety back drop which the Supreme Court may also use for their policy arguments further supporting law enforcement’s quasi-expert status in this field.

THE FACTS:

The February 13, 2015 Incident:

We derive the following facts from the record. At approximately 4:45 p.m. on February 13, 2015, Patrolman Peter Grawehr of the Denville Police Department stopped defendant for failing to wear a seatbelt. Upon approaching defendant’s vehicle, Grawehr smelled the “odor of heavy alcohol.” He administered a series of Standardized Field Sobriety Tests, beginning with the Horizontal Gaze Nystagmus Test (HGN Test). Grawehr next attempted to conduct the walk-and-turn test, after explaining and demonstrating the test for defendant. During this time, defendant was “swaying side-to-side,” and had to “stop several times to maintain his balance.” After three reinstructions, defendant complied.

Grawehr attempted to conduct the One-Leg Stand Test but defendant repeatedly lost his balance and “explained to [Grawehr] that he could not count past ten one thousand,” but “could count to 31,000 by counting to ten one thousand three times.” Defendant “fumbled Patrolman Grawehr’s request for registration by producing a rental agreement,” and admitted to consuming one alcoholic beverage. Based on all of his observations, Grawehr believed defendant was under the influence and unable to safely operate a motor vehicle.

He was placed under arrest and transported to the Denville police station, where Grawehr administered an Alcotest, which revealed a blood alcohol content of 0.04%. The officer discovered a “small pink plastic [z]iploc baggie[] with some unknown residue inside.” After questioning defendant about the contents of the baggie, he asserted his Fifth Amendment privilege against self-incrimination. Additionally, Grawehr observed defendant exhibiting erratic behavior and acting belligerently.

Since Grawehr felt “the level of impairment didn’t match up with the alcohol reading,” he contacted Sergeant Pat McNichol, a certified DRE, who performed a Drug Influence Evaluation (DIE) on defendant. He had difficulty with balance, and exhibited a “circular sway.” McNichol also attempted to conduct the One-Leg Stand Test, however, when defendant “swayed while balancing and used his arms for balance,” the officer stopped the test because of safety concerns. McNichol concluded that defendant was under the influence of a central nervous system (CNS) depressant, a sympathetic nervous system (SNS) stimulant, and alcohol.

The August 17, 2015 Incident:

On August 17, 2015, defendant drove his GMC Yukon off a road and struck a telephone pole in Denville. At approximately 4:48 a.m., Patrolman David Longo investigated the accident. He approached defendant, who had already exited his vehicle, and noted he was “having trouble keeping his balance[,]” “his speech was slurred[,]” and he had “a lot of saliva” on his face and chin. After being questioned by Officer Longo about medications, defendant responded that he was released from the hospital the night before and prescribed Lipitor, Ambien, and another medication, but could not recall the name.3 Defendant also stated that he injured his foot a year prior to the accident, which affected his balance and ambulation. Longo administered a series of Standard Field Sobriety Tests, including the HGN Test, walk-and-turn test, and One-Leg Stand Test. Defendant had to be instructed “multiple times” before complying with instructions. He had a “blank stare,” his speech was slurred, and he was swaying.

Defendant was arrested for DWI. After being transported to the police station, Longo administered an Alcotest, which showed a blood alcohol content of 0.00%. No blood was drawn, and defendant refused to provide a urine sample. Based upon defendant failing the field sobriety tests, finger-to-nose test, his slow coordination, rapid breath, a pale complexion, and bloodshot eyes, Longo contacted Detective Dennis Subrizi to perform a DRE on defendant.

After conducting a DRE, Subrizi confirmed these symptoms. He also found defendant exhibited mood swings, as he “went from being happy to crying in all of a matter of a couple of seconds,” which he opined is “a huge indicator for somebody to be under [the influence] of liquor and/or drugs.” He concluded that defendant was under the influence of a CNS stimulant and depressant.

Dr. Robert Pandina, defendant’s DRE expert, testified that the DRE protocol was flawed here because no toxicology samples were collected and same were necessary to identify the drug and quantity consumed by defendant.

Legal Argument

Expert testimony that is scientific in nature is only admissible if the method used by the expert has “a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth.” State v. Kelly, 97 N.J. 178, 210 (1984) (citations omitted). In State v. Bealor, 187 N.J. 574, 592-93 (2006), the Court noted that: “As part of their required course of study, police officers must be trained in detecting drug- induced intoxication.” When dealing with scientific evidence, this State has adopted the Frye standard of admissibility as set forth in State v. Harvey, 151 N.J. 117, 169-70 (1997). A proponent of a newly-devised scientific technology can prove its general acceptance in three ways:

(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis;

(2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and

(3) by judicial opinions that indicate the expert’s premises have gained general acceptance.

[Harvey, 151 N.J. at 170 (quoting Kelly, 97 N.J. at 210)].

The judge found DRE evidence “qualifies as scientific evidence subject to judicial gatekeeping,” and stated: [B]ecause of the scientific background of many of the steps of the protocol, DRE evidence, taken as a whole, qualifies as being scientific enough to trigger a ruling under the Frye-Harvey standard. The [c]ourt agrees with [d]efendant that DRE evidence is indeed scientific. As to the reliability of DRE evidence here, Judge DeMarzo found:

Nevertheless, New Jersey’s continued reliance on DRE evidence indicates the willingness that it still finds it to be generally acceptable and reliable in the scientific community. As previously stated, a scientific method can be disputed, but the evidence it procures remains admissible. Moreover, Dr. Pandina’s disagreement of such acceptance cannot in itself overturn the reliability of certain scientific subject-matter because its acceptability does not turn on a unanimous or universal agreement. For these reasons, DRE evidence satisfies the three requirements outlined in Harvey.

[Internal citations omitted.]
These facts were significant enough to support a conclusion that defendant’s intoxication “so affected [his] judgment or control as to make it improper for him to drive on the highways.” Johnson, 42 N.J. at 165. Put another way, defendant was under the influence because he suffered a “substantial deterioration or diminution of the mental faculties or physical capabilities of a person . . . .” State v. Tamburro, 68 N.J. 414, 421 (1975). A defendant’s demeanor, physical appearance, slurred speech, and bloodshot eyes, together with poor performance on field sobriety tests, are sufficient to sustain a DWI conviction. State v. Bealor, 187 N.J. at 588-89. Here, Officer Grawehr and Longo’s observations of defendant, combined with his inability to satisfactorily perform psycho-physical tests, were more than sufficient to sustain his DWI convictions.

We also reject defendant’s argument that the Law Division judge improvidently relied upon DRE evidence. Further, we are satisfied that the record contains substantial credible evidence to support the findings by the Law Division judge that defendant was driving while under the influence of hallucinogenic and habit-producing drugs, without regard to the Alcotest readings. Contrary to defendant’s contentions, there was ample evidence to support his convictions based on his physical condition at the time of the stops. As to the February 13, 2015 incident, DRE expert, McNichol, testified that defendant “possessed slow coordination, unclear speech, stale breath, a pale face, bloodshot eyes, reddened nasal area, and a white paste on his tongue.”

As to the August 17, 2015 incident, based upon DRE expert Subrizi’s testimony, the judge found “an abundance of evidence” to find defendant guilty beyond a reasonable doubt based upon “[h]is physical appearance, cognitive expressions, and multiple failed sobriety tests . . . .” The observations and opinions of McNichol and Subrizi were sufficient to allow Judge DeMarzo to determine beyond a reasonable doubt that defendant was guilty of driving while intoxicated on both occasions.