Special Master issues report finding that DRE evidence satisfies the reliability standard and should be allowed as evidence

On November 18, 2019, the Supreme Court of NJ remanded the matter of State of NJ v. Michael Olenowski to a Special Master for a plenary hearing to consider and decide whether Drug Recognition Evaluator (“DRE”) evidence satisfies the reliability standard of NJ Evidence Rule 702 so as to allow its admissibility in evidence. Presiding Judge of the Appellate Division Joseph F. Lisa (retired and temporarily assigned on recall) was appointed as the Special Master.

On August 18, 2022, Judge Lisa issued his 332-page report.

NJ Evidence Rule 702 provides that “[i]f 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 3 things: (1) that the subject matter of the testimony is “beyond the ken of the average juror;” (2) that the field of inquiry “must be at a state of the art such that an expert’s testimony could be sufficiently reliable;” and (3) that “the witness must have sufficient expertise to offer” the testimony.

It is the second requirement – assuring that the proposed expert testimony is “sufficiently reliable” – that is at issue in this case.

Ultimately, Judge Lisa concluded that DRE testimony is sufficiently reliable and should be admissible in evidence. In particular, he found:

“The reliability is established by the expert testimony presented by the State, which establishes that the DRE protocol replicates generally accepted medical practices for identifying the presence of impairing drugs and their likely identity through a toxidrome recognition process. This testimony has also established that the DRE matrix comports with matrices designed for this purpose and generally accepted and used in the medical field. This testimony has also established that the training DREs receive is comparable to that received by medical technicians and that DREs are thus enabled to reliably apply the protocol. Therefore, by implication, the DRE protocol as a whole and its individual components are generally accepted in the scientific communities to which they belong, namely medicine and toxicology.”

The matter will now be returned to the NJ Supreme Court for further action.