State v. Michael Olenowski

Appellate Docket No.: A-56-18

Decided February 17, 2023

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.

In a recent opinion, the Supreme Court of New Jersey reviewed the special master’s report on Drug Recognition Experts (DRE) used in criminal cases and in doing so, adopted a new standard of admissibility of expert testimony in criminal matters

In State v. Olenowsky, the Court granted certification in this matter, 236 N.J. 622 (2019), to decide whether the testimony of a certified Drug Recognition Expert (DRE) is admissible at trial and, if so, under what circumstances. DREs apply a twelve-step protocol to assess whether a person is impaired. At trial, the prosecutor introduced DRE testimony to prove that defendant had been driving while under the influence. The Municipal Court Judge convicted defendant; the Superior Court upheld the use of DRE evidence under Frye and affirmed; the Appellate Division also affirmed.

After oral argument, the Court found the record inadequate to test the validity of DRE evidence and appointed the Honorable Joseph F. Lisa as a Special Master to conduct a plenary hearing. 247 N.J. 242, 244 (2019). Judge Lisa concluded in a 332-page report that DRE evidence should be admissible under the Frye standard.  Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). That standard turns on whether the subject of expert testimony has been “generally accepted” in the relevant scientific community.

The Supreme Court has moved away from the Frye test over time, shifting in civil cases toward an approach that focuses directly on reliability by evaluating the methodology and reasoning underlying proposed expert testimony — a standard similar to the one outlined in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

Under Daubert and Accutane, trial courts directly examine the reliability of expert evidence by considering all relevant factors, not just general acceptance. In re Accutane Litig., 234 N.J. 340, 398 (2018). Focusing on testing, peer review, error rates, and other considerations better enables judges to assess the reliability of the theory or technique in question. Courts are also in a better position to examine novel and emerging areas of science. In addition, to the extent Frye and cases that follow it draw lines between scientific and technical or other specialized knowledge, Daubert eliminates that unworkable distinction.

Accordingly, for cases going forward, Courts are to utilize the Daubert standard for expert admissibility and Frye will no longer be utilized. The case was remanded back to the Special Master to analyze DRE experts under the Daubert standard.

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 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.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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