Josh Bauchner, chair of the Cannabis, Hemp, and Psychedelics Practice Group, provides an analysis of Drug Recognition Experts (DREs) and Workplace Impairment Recognition Experts (WIRES) in his presentation, “Impaired Judgments: The Untested Science Behind DREs and WIRES in New Jersey.” The presentation addresses the complexities of determining impairment from cannabis and other substances in light of their legalization and the resultant legal and workplace implications.
Joshua points out that substances like cannabis can remain detectable in the body long after their effects have worn off, complicating impairment assessments by DREs and WIREs. This issue is particularly relevant as these experts use methodologies that may not accurately reflect an individual’s state of impairment, leading to potential misjudgments in both traffic stops and workplace evaluations.
The New Jersey Supreme Court’s ruling in State vs. Olenowski upheld the use of DRE evaluations, asserting their scientific basis as sufficient for legal proceedings. However, this decision has been met with criticism, especially because it lowers the standards for the admissibility of such evidence, allowing judges wide latitude in its interpretation. This has raised concerns about the consistency and fairness of judicial decisions regarding impairment.
Further complicating the issue, New Jersey law now requires businesses to employ WIREs, irrespective of the size of the company. “It doesn’t matter if you’re a three-person landscaping company or a thousand-person pharmaceutical company, you are required to have someone trained as a WIRES to determine whether an employee is impaired.” notes Joshua. This mandate presents significant challenges, particularly for small businesses, due to the administrative and financial burdens it imposes. Critics also question the scientific foundation of the impairment tests used, suggesting a need for review.
Joshua then elaborates on the societal implications of these policies, including the potential for disproportionate effects on minorities and the risk of inaccuracies in impairment assessment based on subjective symptoms like fatigue or dehydration.
As New Jersey and other states address the implications of substance legalization, the discussion around DREs and WIREs underscores the balance between public safety and individual rights, emphasizing the importance of evidence-based practices in legal and workplace settings.
You can reach Joshua Bauchner at jbauchner@mblawfirm.com or 973-607-1269