Miranda Warnings Are Required Whenever There Is A “Custodial Interrogation”

State of New Jersey v. Michael Olenowski

Decided August 18, 2022

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent published opinion, the Supreme Court of New Jersey authored an extensive decision determining whether Drug Recognition Expert (“DRE”) evidence satisfies the reliability standard of N.J.R.E. 702 to allow its admission into evidence. R. 702 states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.”

It is abundantly clear from Miranda v. Arizona, 384 U.S. 436 (1966) and all the cases which follow, that Miranda warnings are required whenever there is a “custodial interrogation”. State v. Pierson, 223 N.J. Super 62, 66 (App. Div. 1988) defined custody for purposes of Miranda as when an individual is “deprived of his freedom of action in any significant way”. Factors to be considered include the duration of the detention, the nature and degree of pressure applied to the detained individual, the physical surroundings, and the language used by the police officer in posing any question to the detained individual. Custody arises after police conduct constitutes the functional equivalent of a formal arrest based upon an objective evaluation of the totality of the circumstances. Berkemer v. McCarty, 468 U.S. 420 (1984). Courts have adopted the “objectively reasonable man test” in assessing if a defendant is in custody at the time of questioning. State v. O’Neal, 190 N.J. 601, 615-16 (2007). The standard has always been whether a reasonable person in the defendant’s position would not have felt free to leave.

In this case, the Defendant was charged with driving under the influence of drugs, in violation of N.J.S.A. 39:4-50(a), on two separate occasions in 2015. At the time of each incident, while under arrest shortly after driving, the Defendant was evaluated by a Drug Recognition Expert (DRE), each of whom formed an opinion that he was driving under the influence of impairing drugs. Before either case went to trial, Defendant moved to bar the testimony of the DREs, requesting a hearing under Frye vs. United States, 293 F. 1013 (D.C.Cir. 1923), to assess whether the proposed DRE testimony was sufficiently reliable to be allowed in evidence. The municipal court judge denied the motion and allowed the DREs to testify. Following separate trials in the Hanover Municipal Court, Defendant was found guilty in April and May 2016 of the Driving Under the Influence of Drugs charges, which constituted his second and third offences in violation of N.J.S.A. 39:4-50(a).

A pertinent issue in this case and many other similarly related cases is at what point the suspect should have been read Miranda warnings. Prior to the time the DRE arrives on scene to conduct their analysis, it is clear that the suspect is no longer free to leave and is in “custody”, and once the suspect gets asked pointed questions by the DRE, that is the “interrogation” component of Miranda. If both components are present, Miranda warnings must be read or else any statement by the suspect will be inadmissible in court.  As a result, this is a significant issue because if the court determines the DRE asking questions does not trigger Miranda warnings, anything said during the course of the interaction would be admissible in court. However, if the court determines the DRE asking questions does trigger Miranda warnings, if they were not provided to the suspect, nothing he says during the interaction would be admissible in court.

When the case reached the Supreme Court of New Jersey, Judge Joseph F. Lisa found that the DRE program replicates generally accepted medical practices in identifying the presence of impairing drugs and the likely category of those drugs in an individual exhibiting indicium of impairment, in which alcohol intoxication has been ruled out by an Alcotest examination and there is no evidence that the impairment stems from medical or injury conditions. Judge Lisa also ruled that the DRE protocol is generally accepted in the medical and toxicological fields by implication. Direct proof is elusive because the evidence makes clear that members of the medical profession generally are not familiar with the DRE program. Nevertheless, the evidence establishes that the DRE protocol comports with standards and practices generally accepted in the medical and toxicological communities for use in toxidrome recognition. The DRE protocol is a version of toxidrome recognition adapted to law enforcement for use in Driving Under the Influence of Drugs enforcement. Accordingly, subject to these caveats, Judge Lisa ruled that DRE evidence satisfies the reliability standard of N.J.R.E. 702 and should be admissible in evidence.

At Hark & Hark, we are experienced attorneys who represent clients for appeals in Superior Court for issues like the previously discussed case pertaining to possible Miranda violations by law enforcement officers/Drug Recognition Experts during DUI stops. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the Defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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