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State v. Olenowski

Challenging the Reliability of Drug Recognition Evaluators (DRE) in assessing and investigating Driving Under the Influence of Drug (DUID) cases.

Day 7, October 7, 2021, Olde Historic Courthouse, Mount Holly, NJ

I am representing the DUI Defense Lawyers Association as Amicus in the New Jersey challenge to DRE (Drug Recognition Evaluation) in State v. Olenowski. Now on Day 7 of testimony in a hearing that will run through November. This case will determine the scientific reliability and admissibility in New Jersey of the 12 step process that police officers use to assess whether arrestees are purportedly under the influence of illegal or prescriptive drugs at the time of the testing.

DRE is a cobbled together process of medical assessments by non-medical personnel, use of field sobriety tests that are not validated for drug testing, and toxicology, usually urine testing, that doesn’t include quantitative amounts of the presence of the substance the individual is alleged to be under the influence of. Statistics show that DRE results are less than 50 percent reliable.

The correct result of the hearing will be that Drug Recognition Evaluation is not scientifically reliable. Any other result would be based on the desire for expediency of convictions for drug based impaired driving. Finding DRE unreliable will not hinder prosecuting those alleged to be under the influence of drugs. Prosecutions may proceed on observation evidence.

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Day 13, October 13, 2021, Olde Historic Courthouse, Mount Holly, NJ

Day 13 of the NJ “Frye” hearing on the admissibility of DRE (Drug Recognition Evaluation) in DWI prosecutions in New Jersey, representing the DUI Defense Lawyers Association as Amicus for the Defense. The first witness, Thomas Page, one of the originators of the program, testified for several days regarding the history of the DRE process. The second witness, New Jersey State Police Sgt. Gibson, head of the NJ DRE training unit, testified about NJ’s program and training. By the end of cross examination of both witnesses, it was clear that the program, while comprehensive and complex, has no scientific basis for its conclusions. The third witness, Bridget Verdino, in charge of the NJSP State Lab forensic testing of urine and blood samples from the DRE cases, is testifying now. The reliability of the testing is not being challenged. Testimony and argument is expected to last into December. At the close of the hearing, Supreme Court Special Master, Hon. Joseph Lisa, J.A.D. (ret/recall) will write a recommendation to the New Jersey Supreme Court on the reliability of DRE in NJ courts. Briefing and argument in front of the NJ Supreme Court should occur in the Spring.

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Day 19, October 19, 2021, Olde Historic Courthouse, Mount Holly, NJ

HGN testimony today in State v. Olenowski, the New Jersey Supreme Court Special Master Hearing determining the scientific reliability of Drug Recognition Evaluation (DRE), from State’s witness Karl Citek, a professor of Optometry. I commented to one of the prosecutors how exciting today is, and he agreed, smiling, until I added what a farce it was. He laughed and said, “You had to get that dig in, didn’t you?” Uh, yeah I did!
Honored to be representing the DUI Defense Lawyers Association as Amicus in the case.
Eye iris Petr Novák, Wikipedia, CC BY-SA 2.5, via Wikimedia Commons
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