In an insightful piece for the New Jersey Law Journal, Joshua S. Bauchner, Chair of the Cannabis, Hemp and Psychedelics practice group at Mandelbaum Barrett in Roseland, NJ, and New York, NY, delves into the recent pivotal ruling by the New Jersey Supreme Court on the admissibility of drug recognition expert testimony.
Joshua explains that in November 2023, the New Jersey Supreme Court ruled in State v. Olenowski that the testimony of drug recognition experts (DRE) is sufficiently reliable to be used as evidence, thereby lowering the standard for reliability of DRE evidence. DREs are trained to detect drug impairment in drivers when traditional methods like breathalyzers are ineffective. Their assessment involves a 12-step protocol designed to determine if a suspect is impaired due to drugs or a medical condition.
Despite the special master’s report in Olenowski originally finding DRE evidence admissible based on general scientific consensus, the New Jersey Supreme Court requested the application of a more liberal standard for admissibility. This new standard allows judges to decide on the admissibility of DRE evidence on a case-by-case basis, irrespective of scientific agreement.
Justices Fabiana Pierre-Louis and Chief Justice Stuart Rabner dissented from the majority opinion, raising concerns about the DRE protocol’s reliability and accuracy, especially in terms of testability and the rate of false positives.
The ruling has significant implications for minority communities in New Jersey, given the historical context of racial bias in cannabis regulation and law enforcement. The persistent Schedule I classification of cannabis has often been used to target people of color. Evidence of racial disparities in traffic stops and searches by New Jersey state troopers further exacerbates these concerns. Black and Hispanic motorists are disproportionately stopped and searched, with these interactions more likely to result in negative outcomes.
The subjective nature of the DRE test, coupled with data showing a high rate of false positives among individuals who tested negative for drugs, raises serious reliability questions. The decision by the New Jersey Supreme Court to lower the standard for DRE evidence admission, despite these concerns, continues to disproportionately impact minority communities, mirroring the broader issues of the war on drugs. This has led to criticism of the court for legitimizing what some consider to be “junk science,” without adequately considering its severe consequences on these communities.
To contact Joshua Bauchner you can email or call at 973-607-1269 or jbauchner@mblawfirm.com.
To read the article on the New Jersey Law Journal, click here.