State Jersey v. Olenowski

255 N.J. 529

304 A.3d 598

STATE of New Jersey, Plaintiff-Respondent, v. Michael OLENOWSKI, Defendant-Appellant.

A-56 September Term 2018

082253

Supreme Court of New Jersey.

Supplemental Special Master Report April 13, 2023

Re-Argued June 1, 2023

Decided November 15, 2023

Margaret McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret McLane, of counsel and on the supplemental brief).

Sarah C. Hunt, Deputy Attorney General, argued the cause for respondent ( Matthew J. Platkin, Attorney General, attorney; Sarah C. Hunt, of counsel and on the supplemental brief, and Adam D. Klein, Deputy Attorney General, on the supplemental brief).

Alexander Shalom argued the cause for amici curiae American Civil Liberties Union of New Jersey and statistics experts Alicia Carriquiry, Kori Khan, and Susan VanderPlas (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the supplemental brief).

John Menzel argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar Association, attorneys; Jeralyn L. Lawrence, President, of counsel, and John Menzel, on the supplemental brief).

Steven W. Hernandez submitted a supplemental brief on behalf of amicus curiae National College for DUI Defense (The Hernandez Law Firm, attorneys; Steven W. Hernandez, of counsel and on the supplemental brief).

Jeffrey H. Sutherland, Cape May County Prosecutor, submitted a supplemental brief on behalf of amicus curiae County Prosecutors Association of New Jersey ( Jeffrey H. Sutherland, President, attorney; Jeffrey H. Sutherland, Joseph Paravecchia, First Assistant Hunterdon County Prosecutor, Laura Sunyak, Assistant Mercer County Prosecutor, Gretchen Pickering, Assistant Cape May County Prosecutor, and David M. Liston, Assistant Middlesex County Prosecutor, of counsel, and Monica do Outeiro, Assistant Monmouth County Prosecutor, of counsel and on the supplemental brief).

Aidan P. O'Connor submitted a supplemental brief on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; Aidan P. O'Connor and Marc M. Yenicag, of counsel and on the supplemental brief).

Vito A. Gagliardi, Jr., submitted a supplemental brief on behalf of amicus curiae New Jersey State Association of Chiefs of Police (Porzio, Bromberg & Newman, attorneys; Vito A. Gagliardi, Jr., of counsel, and David L. Disler and Thomas J. Reilly, on the supplemental brief).

Evan M. Levow submitted a supplemental brief on behalf of amicus curiae DUI Defense Lawyers Association, Inc. (Levow DWI Law, attorneys; Evan M. Levow, on the supplemental brief).

JUDGE SABATINO (temporarily assigned) delivered the opinion of the Court.

Table of Contents

Introduction...607

I. New Jersey's Driving Under the Influence Statutory Scheme...608

II. Factual Background and Procedural History...611

A. Drug Recognition Experts (DREs) and the Drug Evaluation and Classification Program...611

1. The 12-Step DRE Protocol...611

2. Development of the DRE Protocol....616

B. Defendant's DRE-Based Convictions and Ensuing Appeals...616

C. This Court's Review and the Special Master Proceedings...617

1. Special Master Hearing and SM Report I: Admissibility Under the Frye Standard...617

2. Olenowski I: Adoption of the Daubert Admissibility Standard...619

3. SM Report II: Applying the Daubert Standard...620

III. Arguments of the Parties and Amici...622

IV. Standard of Review of Expert Reliability Rulings...623

V. De Novo Application of the Daubert Factors...629

A. Adequacy of Standards...631

B. Peer Review and Publication...633

C. Testability and Error Rate...637

D. General Acceptance...642

VI. Analysis...644

A. The "Consistency Only" Limitation...645

B. The Absence of a Toxicology Report ("Step 12")...647

C. Fair Opportunity for Defense Impeachment and Counterproofs...647

D. Jury Instructions...648

VII. Impact on the State's Burden of Proof...648

VIII. Conclusion...649

Introduction

Driving by drug-impaired persons is a critical and growing public safety problem in New Jersey and across the nation. Such drivers commonly have reduced perception and slowed reaction times. They are prone to cause accidents -- sometimes fatal ones.

Our state laws make it illegal to operate a motor vehicle "while under the influence of intoxicating liquor, narcotic, hallucinogenic, or habit-producing drug." N.J.S.A. 39:4-50. Repeat offenders can be sentenced to jail. However, unlike driver impairment caused by alcohol, which can be proven by a prohibited blood alcohol concentration (BAC) level established by statute, New Jersey statutes do not have comparable "per se" standards for driving under the influence of drugs (DUID), or drugged driving. Many other states similarly lack numerical standards for DUID.

Detecting and proving that a driver ingested and was under the influence of drugs while behind the wheel can be challenging. To enable such detection, law enforcement officials and researchers began in the 1970s to develop a protocol now known as the Drug Evaluation and Classification Program. The protocol is used today in all fifty states, the Canadian provinces, and other countries.

The protocol consists of twelve steps administered by specially trained officers known as Drug Recognition Experts (DREs). The twelve steps entail interviewing and observing the driver, checking vital signs, administering standardized field sobriety tests, and other information-gathering measures. At the end of the protocol, the DRE, guided by a standardized matrix, reaches an opinion about whether the driver is under the influence of drugs from one or more of seven categories and is thereby unable to operate a motor vehicle safely.

The DRE protocol, which the Public Defender and other amici have challenged as unreliable and inadmissible under N.J.R.E. 702, is the subject of this appeal. This Court referred the dispute to a Special Master who conducted forty-two days of extensive hearings with sixteen witnesses.

In his initial 332-page report, the Special Master concluded that the DRE protocol is generally accepted as reliable and thus admissible under the then-applicable admissibility test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Thereafter in State v. Olenowski (Olenowski I ), 253 N.J. 133, 289 A.3d 456 (2023), this Court prospectively adopted a non-exclusive, multi-factor test of expert reliability patterned after the standard in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We remanded the matter to the Special Master to reconsider his findings under the Daubert factors. On remand, the Special Master issued a 57-page report determining that DRE testimony is reliable and admissible under a Daubert-type standard.

With the benefit of thoughtful advocacy from the parties and amici on both sides, we adopt the Special Master's conclusions with significant modifications and limitations.

First, we unanimously hold that Daubert-based expert reliability determinations in our criminal appeals should be reviewed de novo, while other expert admissibility issues are to be reviewed under an abuse of discretion standard.

Second, we conclude the extensive record substantiates that DRE testimony sufficiently satisfies the Daubert criteria to be admissible with important limitations. We reach that conclusion based on the totality of factors, particularly standardization, publication and peer review, and general acceptance. Although the factors of testability and false positive error rate are largely inconclusive due to the skewed composition of the sample of stopped drivers, the record as a whole justifies the admission of DRE testimony, with the following four limitations and safeguards:

• The DRE testimony must be confined to an opinion that the evaluation is "consistent with" the driver's ingestion or usage of one or more of the identified drug categories. The DRE may not present opinions as to whether the driver's observed impairment was actually caused by such drugs and, if so, to what extent.

• If feasible, the State must make a reasonable attempt to obtain a toxicology report based on a blood or urine sample from the driver. If the State fails to make such a reasonable attempt without a persuasive justification, the DRE opinion testimony must be excluded.

• The defense must be afforded a fair opportunity to impeach the DRE and present competing proofs.

• Model instructions to guide juries about DRE evidence should be considered.

With those limitations and safeguards, we adopt the Special Master's findings, as modified.

I. New Jersey's Driving Under the Influence Statutory Scheme

For context, we begin with a brief review of the motor vehicle statute that prohibits impaired driving in this state, N.J.S.A. 39:4-50. The statute declares that "[a] person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more" is subject to certain penalties after each violation, including fines, detainment, and imprisonment. N.J.S.A. 39:4-50(a) (emphasis added); see also State v. Chun, 194 N.J. 54, 71, 943 A.2d 114 (2008) (discussing drunk driving and the DWI penalty scheme); State v. Bealor, 187 N.J. 574, 576, 588, 902 A.2d 226 (2006) (discussing DUID).

The statute has a vital purpose. It "seeks to prevent the operation of motor vehicles by those whose faculties are so impaired as to present a danger to the safety of others as well as themselves." State v. DiCarlo, 67 N.J. 321, 325, 338 A.2d 809 (1975). ¹ In enacting N.J.S.A. 39:4-50, "[t]he obvious intention of the Legislature was to prescribe a general condition, short of intoxication, as a result of which every motor vehicle operator has to be said to be so...