State v. Olenowski

On May 24, 2019 the ACLU of New Jersey and the Office of the Public Defender filed an amicus brief in the New Jersey Supreme Court in a case that questioned the reliability of Drug Recognition Evaluation (DRE) testimony. DRE examinations are performed by police officers to determine whether drivers are under the influence of drugs. There are twelve steps to the DRE protocol, some of which are highly technical. Among other things, the DRE protocol requires testing a suspect’s pulse, gaze nystagmus, blood pressure, temperature, pupil size, and muscle tone. We contended, as a threshold matter, that these tests are sufficiently scientific to require proof of their general acceptance before they can be used in criminal prosecutions. The State did not introduce expert testimony or scientific writings; instead it relied on judicial opinions to prove general acceptance. The brief explained that the State overread the precedent on which it relied and, even if it didn’t, the jurisprudence was not persuasive. Although courts have allowed DRE testimony for a long time, when scientists adapt, courts – as gatekeepers of scientific testimony and evidence – must consider the changed state of science. We urged the Court to appoint a special master to hold a hearing to determine the acceptance, and therefore reliability, of DRE testimony.

Status

On November 18, 2019, the New Jersey Supreme Court remanded the case to a special master to determine the scientific reliability of DRE testimony. The ACLU-NJ and the OPD are participating in the remand hearing.

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