State v. Michael Olenowski

Appellate Docket No.: A-56

Decided April 13, 2023

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

In a recent supplemental report, Special Master recalled Judge Joseph F. Lisa has concluded Drug Recognition Experts (DRE) used in criminal and Driving While Intoxicated (DWI) and Driving Under the Influence (DUI) cases are admissible.

On February 17, 2023, the Supreme Court of New Jersey received Judge Lisa’s prior report concluding DRE experts are admissible under the Frye standard and changed the standard for experts in criminal cases to the Daubert standard, ordering Judge Lisa to analyze DRE experts in that context.

N.J.R.E. 702, governing the admissibility of expert testimony, provides: “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 thereto in the form of an opinion or otherwise.”

To satisfy the rule, the proponent of expert evidence must establish three things: (1) the subject matter of the testimony must be “beyond the ken of the average juror”; (2) the field of inquiry “must be at a state of the art such that an expert’s testimony could be sufficiently reliable”; and (3) “the witness must have sufficient expertise to offer the” testimony.

[State v. J.L.G., 234 N.J. 265, 280 (2018) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)).]

The fundamental structural difference in the shift from Frye to Daubert analysis can be expressed as follows. In assessing whether proffered expert testimony meets the “sufficiently reliable” prong of N.J.R.E. 702, to allow it to be placed before the factfinder, “Frye permits judges to consider only whether the subject of the testimony has been ‘generally accepted’ in the relevant scientific community.” Olenowski, 253 N.J. at 139. Thus, judges do not directly assess reliability. Judicial inquiry defers to the community of experts in the field to decide by a sufficient consensus of opinion. Under Daubert, judges are empowered “to directly examine the reliability of expert evidence and consider a broader range of relevant information.” Ibid.

Judge Lisa concluded the State has clearly established that the DECP and the twelve-step DRE protocol satisfy the reliability standard of N.J.R.E. 702 when analyzed under the methodology-based Daubert. This finding is a result of my direct assessment of the reliability of the methodology of the DECP and the DRE protocol.  Judge Lisa also found that DREs can be and are adequately trained to reliably perform the steps in the protocol.

Finding DREs meet the Daubert standard, Judge Lisa concluded DREs are admissible.

This case has significant impacts on criminal cases moving forward when there is an expert involved.  The new Daubert standard provides significantly more opportunity to challenge expert testimony, as now argument can be made as to evaluating methodology and reasoning instead of automatically accepting the expert if it were deemed “generally acceptable” as per Frye.

If you or someone you know have been charged with any indictable offense or disorderly persons, and an expert may be involved, contact the experienced attorney at Hark & Hark to ensure you are adequately defended.

At Hark & Hark, we represent clients in Superior Court and municipal court for Driving While Intoxicate (DWI), Driving Under the Influence (DUI) and drug related offenses like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, 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 Bass River, Beverly, Bordentown City, Bordentown Township, Burlington City, Burlington Township, Chesterfield, Cinnaminson, Delanco, Delran, Eastampton, Edgewater Park, Evesham, Fieldsboro, Florence, Hainesport, Lumberton, Mansfield, Maple Shade, Medford Lakes, Medford Township, Moorestown, Mount Holly, Mount Laurel, New Hanover, North Hanover, Palmyra, Pemberton Borough, Pemberton Township, Riverside, Riverton, Shamong, Southampton, Springfield, Tabernacle, Washington Township, Westampton, Willingboro, Woodland Township, and Wrightstown.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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