State v. Michael Olenowski

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office

of the Clerk for the convenience of the reader. It has been neither reviewed nor

approved by the Court and may not summarize all portions of the opinion.

State v. Michael Olenowski (A-56-18) (082253)

Re-Argued June 1, 2023 -- Decided November 15, 2023

SABATINO, P.J.A.D. (temporarily assigned), writing for the Court.

In State v. Olenowski (Olenowski I), 253 N.J. 133 (2023), the Court adopted

for criminal cases a non-exclusive, multi-factor test for the reliability of expert

testimony patterned after the standard established in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court now considers whether Drug

Recognition Expert (DRE) testimony is reliable and admissible under that standard.

The Court also considers the appropriate standard of review for Daubert-based

expert reliability determinations in criminal appeals.

N.J.S.A. 39:4-50 prohibits impaired driving, whether the impairment is caused

by alcohol or one or more drugs. A driver whose blood alcohol concentration

(BAC) level exceeds the 0.08% limit prescribed by that statute is guilty -- per se --

of driving while intoxicated. But there is no equivalent per se violation in this state

for persons who drive with impairment-causing drugs in their system.

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 developed a twelve-step protocol:

(1) a breath alcohol test;

(2) an interview of the arresting officer;

(3) a preliminary examination and first pulse check;

(4) a series of eye examinations;

(5) four divided attention tests;

(6) a second examination and vital signs check;

(7) a dark room examination of pupil size and ingestion sites;

(8) an assessment of muscle tone;

(9) a check for injection sites;

(10) an interrogation of the driver by the DRE;

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(11) a final opinion, based on the totality of the examination, about

whether the driver is under the influence of a drug or drugs; and

(12) a toxicological analysis.

Defendant Michael Olenowski was convicted of drug-impaired driving based

in part on DRE evidence. His convictions were upheld on appeal, and the Court

granted certification to determine whether DRE testimony is admissible under the

“general acceptance” admissibility standard established in Frye v. United States, 293

F. 1013 (D.C. Cir. 1923). 236 N.J. 622 (2019).

Finding that the record was not sufficient to make that determination, the

Court asked a Special Master to conduct a hearing. 247 N.J. 242, 244 (2019). The

Special Master concluded that DRE evidence should be admissible under Frye.

In subsequent briefing to the Court, several counsel focused upon error rates

associated with DRE evidence. Because error rates are expressly considered under

Daubert, but not Frye, the Court asked for supplemental briefing on “whether this

Court should depart from Frye and adopt the principles of Daubert in criminal

cases.” Both parties and nearly all of the amici advocated that the Court adopt the

Daubert standard, similar to its previous adoption of Daubert-based principles for

civil cases in In re Accutane Litigation, 234 N.J. 340 (2018).

In Olenowski I, the Court adopted a “Daubert-type standard” for determining

the reliability of expert evidence in criminal and quasi-criminal cases and remanded

this matter to the Special Master to apply that standard. 253 N.J. at 153, 155. The

Special Master concluded that the twelve-step DRE protocol satisfies the reliability

standard of N.J.R.E. 702 when analyzed under the methodology-based Daubert-

Accutane standard. The Court now considers that conclusion.

HELD: Daubert-based expert reliability determinations in criminal appeals will be

reviewed de novo, while other expert admissibility issues are reviewed under an

abuse of discretion standard. Here, the extensive record substantiates that DRE

testimony sufficiently satisfies the Daubert criteria to be admissible, with the

following four limitations and safeguards:

* The DRE may opine only that the evaluation is “consistent with” the

driver’s ingestion or usage of drugs, not that it was actually caused by drugs.

* If the State fails to make a reasonable attempt to obtain a toxicology report

without a persuasive justification, the DRE testimony must be excluded.

* The defense must be afforded a fair opportunity to impeach the DRE.

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

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1. Most evidentiary rulings are reviewed for an abuse of discretion. In Accutane,

the Court held that trial courts’ expert reliability determinations should be reviewed

under that standard in civil matters. See 234 N.J. at 392. In criminal law, however,

a trial court’s reliability determination under Frye -- i.e., its determination of

whether the relevant scientific community generally accepts a scientific theory, test,

or technique -- was accorded less deferential review than other evidentiary

decisions. Going forward, in New Jersey criminal and quasi-criminal cases in which

the trial court has admitted or excluded an expert witness based upon Daubert

reliability factors, appellate courts shall review that reliability determin ation de

novo. However, other case-specific determinations about the expert evidence --

such as whether the witness has sufficient expertise, whether the evidence can assist

the trier of fact, and whether the relevant theory or technique can properly be

applied to the facts -- should be reviewed for an abuse of discretion. (pp. 44-60)

2. The United States Supreme Court identified in Daubert a list of four factors for

assessing reliability of an expert’s methodology under Fed. R. Evid. 702:

(1) whether the scientific theory or technique can be, or has been, tested;

(2) whether it has been subjected to peer review and publication;

(3) the known or potential rate of error as well as the existence of standards

governing the operation of the particular scientific technique; and

(4) general acceptance in the relevant scientific community.

Daubert made clear that the factors are non-exclusive and that the reliability inquiry

is “flexible,” signaling that other considerations may also be pertinent. See 509 U.S.

at 594. For ease of discussion in this particular case, the Court reorganizes the

Supreme Court’s listing of Daubert factors in a few ways and applies them in this

sequence: (A) adequacy of standards; (B) publication and peer review; (C)

testability and error rate; and (D) general acceptance. (pp. 60-63)

3. Adequacy of Standards. The twelve-step DRE process is elaborate and

standardized. It is grounded in a program that has been used across the nation and

abroad for decades and is periodically modified. The Court reviews counter-

arguments, including the concern that DREs are neither physicians nor medical

professionals, and explains why they do not alter its conclusion. (pp. 63-68)

4. Peer Review and Publication. The Special Master appropriately considered not

only the existence of roughly two dozen studies but also their substantive content

and conclusions. He determined that they “support the State’s position that the DRE

protocol has consistently been found to be a reliable method for detecting

impairment by drugs.” Although the studies have certain limitations, the Court

holds that they meet the Daubert factor of publication and peer review. (pp. 69-77)

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5. Testability and Error Rate. “Ordinarily, a key question to be answered in

determining whether a theory or technique is scientific knowledge that will assist the

trier of fact will be whether it can be (and has been) tested.” Daubert, 509 U.S. at

593. The term “ordinarily” conveys that a judge’s findings of testability and

reasonably low error rates from test results are expected -- but not always required --

elements of a proponent’s reliability showing. As the Special Master recognized,

there are inherent practical limitations within the DRE program that complicate

efforts to test the program results empirically and to obtain meaningful error rates .

Constitutional, ethical, and practical constraints make the DRE program less

“testable” and the error rate less “knowable” than the ideal. After reviewing the

New Jersey data in the record, the Court concludes that the testability and false-

positive error rate aspects of the Daubert analysis are largely inconclusive but finds

that the inconclusiveness should not categorically bar admission of this useful

evidentiary source. The Court rejects the assertion that testability and error rates are

categorically the most important Daubert factors. (pp. 78-90)

6. General Acceptance. For many years, the DRE protocol has been widely and

regularly used across this country and abroad. No state has discontinued it, and no

state’s highest court has nullified it. The protocol has been studied multiple times

and periodically revised and enhanced. Although it has imperfections, the protocol

has stood the test of time in its widespread acceptance. (pp. 90-95)

7. Many facets of the DRE protocol weigh in favor of its reliability, but the protocol

has several weaknesses as well. It does not establish that a driver is actually

impaired, or that the drug categories identified by the DRE are definitively the cause

of any such impairment. And there are palpable risks of confirmation bias when a

DRE officer administers the protocol, particularly in the more subjective aspects of

the examination. Thus, although Court finds DRE testimony sufficiently reliable to

be admitted in our courts, it adopts several limitations on the admissibility and

probative use of a DRE’s opinion in criminal and quasi-criminal cases:

First, a DRE is only allowed to opine in court that the protocol has presented

indicia that are “consistent with” the driver’s usage of certain categories of

drugs. The DRE’s expert opinion testimony must not go further than that.

Proof of consistency can be pertinent as one component within the totality of

the evidence to support an inference that drugs caused a driver’s impairment.

Second, a toxicology report corroborating a DRE’s opinion is important

evidence. DRE officers must make a reasonable attempt to obtain a

toxicology report when it is feasible to do so -- and preferably to obtain a

blood sample rather than a urine sample -- when their protocol indicates at

Step 11 an opinion of consistency with drug use. If the court finds no

reasonable attempt was made, despite its feasibility, the DRE evidence shall

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be excluded. However, if the State establishes a reasonable justification for

the lack of a toxicology report, then the DRE evidence is admissible, subject

to defense impeachment and counterproofs.

Third, if the trial court admits DRE evidence for the State, the defense shall

have a fair opportunity to impeach or rebut it through cross-examination of

the DRE and with counterproofs.

Fourth, it may be beneficial for the court to provide jurors with an explanatory

instruction about the DRE evidence, such as the consistency limitation. The

Court refers this subject to the Model Criminal Jury Charges Committee for

its consideration.

A positive DRE opinion at Step 11 is not dispositive of a driver’s guilt of driving

under the influence of drugs. Unlike a BAC reading of .08% or more in a drunk

driving case, the DRE’s opinion is not used as a per se test of guilt. Instead, the

DRE testimony is just one part of the evidence as a whole, and it can be amplified or

rebutted. The State would have a much steeper burden to prove a driver’s guilt

when it lacks corroborating proof from a toxicology report. (pp. 96-107)

The reports and findings of the Special Master are ADOPTED AS

MODIFIED. Olenowski’s convictions are VACATED.

JUSTICE PIERRE-LOUIS, dissenting, explains that the Court adopted the

Daubert standard for criminal cases in Olenowski I as a means to ensure reliability

through concentration on “the soundness of the methodology used to validate a

scientific theory or technique, the strength of the reasoning underlying it, and the

accuracy of the theory or technique in practice.” 253 N.J. at 150 (emphasis added).

Under Daubert, Justice Pierre-Louis notes, the Court’s charge is not to create

safeguards to try to preserve the use of techniques that cannot withstand rigorous

scrutiny, but rather to ensure that if evidence is given the weight of an expert’s

endorsement, that evidence has “a sufficient scientific basis to produce uniform and

reasonably reliable results.” Ibid. By altering the Daubert factors here, Justice

Pierre-Louis writes, the majority not only reaches a determination of reliability that

is not supported by the test, it also upends the clear guidance in Olenowski I

regarding placing the focus of these expert reliability determinations on testing, peer

review, and error rates. Justice Pierre-Louis would hold that DRE evidence is not

admissible under N.J.R.E. 702.

JUSTICES PATTERSON, SOLOMON, WAINER APTER, and FASCIALE join

in JUDGE SABATINO’s opinion. JUSTICE PIERRE-LOUIS filed a dissent, in

which CHIEF JUSTICE RABNER joins.

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SUPREME COURT OF NEW JERSEY

A-56 September Term 2018

082253

State of New Jersey,

Plaintiff-Respondent,

v.

Michael Olenowski,

Defendant-Appellant.

On certification to the Superior Court,

Appellate Division .

Supplemental Re-Argued Decided

Special Master Report June 1, 2023 November 15, 2023

April 13, 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

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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.

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(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 .................................................................................................... 4

I. New Jersey’s Driving Under the Influence Statutory Scheme ...................... 7

II. Factual Background and Procedural History ............................................. 15

A. Drug Recognition Experts (DREs) and the Drug Evaluation and

Classification Program ..................................................................................15

1. The 12-Step DRE Protocol .............................................................................15

2. Development of the DRE Protocol .................................................................27

B. Defendant’s DRE-Based Convictions and Ensuing Appeals ........................28

C. This Court’s Review and the Special Master Proceedings ............................30

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

Standard .........................................................................................................31

2. Olenowski I: Adoption of the Daubert Admissibility Standard ....................36

3. SM Report II: Applying the Daubert Standard ..............................................37

III. Arguments of the Parties and Amici ........................................................ 42

IV. Standard of Review of Expert Reliability Rulings ................................... 44

V. De Novo Application of the Daubert Factors ............................................ 60

A. Adequacy of Standards ..................................................................................63

B. Peer Review and Publication .........................................................................69

C. Testability and Error Rate ..............................................................................78

D. General Acceptance .......................................................................................90

VI. Analysis ................................................................................................. 96

A. The “Consistency Only” Limitation ..............................................................98

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B. The Absence of a Toxicology Report (“Step 12”) .......................................102

C. Fair Opportunity for Defense Impeachment and Counterproofs .................104

D. Jury Instructions ...........................................................................................105

VII. Impact on the State’s Burden of Proof ................................................. 106

VIII. Conclusion ......................................................................................... 107

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

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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 (2023),

this Court prospectively adopted a non-exclusive, multi-factor test of expert

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reliability patterned after the standard in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (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:

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• 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 (2008) (discussing drunk driving and the DWI

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penalty scheme); State v. Bealor, 187 N.J. 574, 576, 588 (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 (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 affected in

judgment or control as to make it improper . . . to drive on the highways.”

State v. Johnson, 42 N.J. 146, 164-65 (1964) (noting that even “the smallest

amount of alcohol has some slight effect or influence on an individual” and

that being “absolutely ‘drunk’” is not a statutory requirement).

1

In 2016, the Governors Highway Safety Association, based on data from the

Fatality Analysis Reporting System of the National Highway Traffic Safety

Administration (NHTSA), reported that 43.6% of drivers with known drug test

results who were fatally injured in car accidents nationwide were drug-positive

and 37.9% of those drivers were alcohol-positive. Jim Hedlund, Governors

Highway Safety Ass’n, Drug-Impaired Driving: Marijuana and Opioids Raise

Critical Issues for States 7 (May 2018). That report, which was admitted into

evidence during the Special Master’s hearings, highlights that, for those

drivers killed in car accidents from 2006 to 2016, drug-positive rates have

substantially increased while alcohol-positive rates have decreased. Ibid. An

expert witness for the State, Thomas E. Page, also testified before the Special

Master about the prevalence of drug-positive drivers in car accidents in which

drivers were fatally injured.

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The present appeal concerns a driver’s impairment caused by the

ingestion of drugs, not alcohol. Yet the legal consequences are the same.

“The driving while intoxicated statute expresses the Legislature’s desire to

prohibit driving while intoxicated; whether the cause of intoxication is alcohol

or narcotics, hallucinogens or habit-forming drugs is largely irrelevant.”

Bealor, 187 N.J. at 588.

The statute does express one critical difference: per se liability.

Specifically, a driver whose BAC level exceeds the 0.08% limit prescribed by

N.J.S.A. 39:4-50 is guilty -- per se -- of driving while intoxicated. N.J.S.A.

39:4-50(a). There is no equivalent per se violation in this state for persons

who drive with impairment-causing drugs in their system. Compare Bealor,

187 N.J. at 583, 588-92 (noting in DUID cases a lack of evidence that specific

levels of marijuana consumption have a uniform effect on a driver), with

Chun, 194 N.J. at 64 (“[D]rivers whose breathalyzer test results demonstrate

the requisite statutorily-imposed BAC are guilty per se of [DWI].”).2

2

By contrast, at least fifteen other states have such laws. John Lacey et al.,

U.S. Dept. of Transp., Drug Per Se Laws: A Review of Their Use in States 1

(2010). Three of those states have set cutoff blood concentration levels for

certain prohibited drugs. See id. at 1; see also Nev. Rev. Stat. § 484C.110; Va.

Code Ann. § 18.2-266; Ohio Rev. Code Ann. § 4511.19. The twelve

remaining states prohibit driving with any amount of any prohibited drug in

the body. See Drug Per Se Laws, at 1. One of those states, Pennsylvania, has

set minimum cutoff levels for blood test results to be admissible in a DWI

9

Consequently, in prosecutions under N.J.S.A. 39:4-50 involving drugs (or

alcohol below .08% BAC), the State must present evidence on a case-by-case

basis that the driver actually was under the influence of such drugs. See

Bealor, 187 N.J. at 587-91 (discussing the proof required to convict for

DUID).

The critical phrase “under the influence” within N.J.S.A. 39:4-50 is “not

self-defining and [has] required judicial ascertainment of the legislative

intent.” Johnson, 42 N.J. at 164. Case law has provided guidance concerning

the phrase’s intended meaning.

In State v. Tamburro, this Court explained that, “[g]enerally speaking,”

“[t]he language ‘under the influence’ used in [N.J.S.A. 39:4-50] . . . means a

substantial deterioration or diminution of the mental faculties or physical

capabilities of a person whether it be due to intoxicating liquor, narcotic,

hallucinogenic or habit-producing drugs.” 68 N.J. 414, 420-21 (1975); see

also Bealor, 187 N.J. at 589-90. Tamburro cited an earlier opinion of this

Court, which held that a driver “was under the influence of a narcotic drug

within the meaning of N.J.S.A. 39:4-50(a) if the drug produced a narcotic

prosecution. See 75 Pa. Cons. Stat. § 1547(c)(4); Pa. Dept. of Health,

Minimum Levels of Controlled Substances and/or Their Metabolites in Blood,

https://www.health.pa.gov/topics/Labs/Pages/Minimum-Levels.aspx (last

visited Nov. 8, 2023).

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effect ‘so altering his or her normal physical coordination and mental faculties

as to render such person a danger to himself as well as to other persons on the

highway.’” 68 N.J. at 421 (quoting DiCarlo, 67 N.J. at 328); see also Bealor,

187 N.J. at 589-90. Bealor also adopted a definition of “under the influence

[that] means ‘a condition which so affects the judgment or control of a motor

vehicle operator as to make it improper for him to drive on the highway.’” 187

N.J. at 589 (quoting Tamburro, 68 N.J. at 421).

To establish guilt under N.J.S.A. 39:4-50, the State must prove beyond a

reasonable doubt that the defendant was driving while “under the influence” of

at least one of the specified types of substances. In particular, the State must

prove both the “facts of intoxication” and the “cause of intoxication.” Id. at

588, 591. “[A] conviction for driving while under the influence of alcohol will

be sustained on proofs of the fact of intoxication -- [as shown by] a

defendant’s demeanor and physical appearance -- coupled with proofs as to the

cause of intoxication -- i.e., the smell of alcohol, an admission of the

consumption of alcohol, or a lay opinion of alcohol intoxication.” Id. at 588.

Likewise in DUID cases, facts of intoxication must be linked to proofs

of the cause of intoxication. For instance, proofs of “erratic and dangerous

driving,” “slurred and slowed speech,” “‘bloodshot and glassy’ eyes,” “droopy

eyelids,” a “‘pale and flushed’ face,” “fumbl[ing],” “sagging knees,” and an

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“‘emotionless stare’” may be linked with physical evidence of an intoxicating

drug in the car or in the driver’s control, and “the presence of [an intoxicating

drug] in [the] blood stream at the time of the arrest and its likely source.” Id.

at 589-90 (first alteration in original).3 Hence, the State must prove in DUID

cases that (1) the defendant was intoxicated and (2) the cause of the

intoxication was either narcotics, hallucinogens, or habit-producing drugs.

With regard to proving the cause of intoxication in DUID cases, N.J.S.A.

39:4-50 does not define, nor has this Court imposed, a minimum quantum of

narcotics, hallucinogens or habit-producing drugs to establish guilt under the

statute. Id. at 589. In fact, the State is not required to identify “the particular

narcotic[, hallucinogen or habit-producing drug].” Ibid. (alteration in original)

(quoting Tamburro, 68 N.J. at 421).

For many years, this Court has permitted lay persons to testify that

alcohol was the cause of a driver’s intoxication because “[t]he symptoms of

that condition have become such common knowledge that the testimony is

admissible.” State v. Smith, 58 N.J. 202, 213 (1971); accord Bealor, 187 N.J.

at 587. However, the Court treated marijuana differently, observing in Smith

that “[n]o such general awareness exists as yet with regard to the signs and

3

Apart from these examples of evidence of impairment, other evidence of

drug use may be present, such as the smell of burnt marijuana or injection

track marks on a driver.

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symptoms of the condition described as being ‘high’ on marihuana.” 58 N.J.

at 213.

Thirty-five years after Smith, this Court clarified in Bealor that lay

testimony about the fact of a driver’s intoxication is always admissible,

whereas lay testimony ascribing the cause of intoxication is admissible only

when the alleged cause is alcohol. 187 N.J. at 577. In Bealor, the defendant

was prosecuted for driving under the influence of marijuana. Id. at 581-82.

Although we acknowledged that “much ha[d] changed in the intervening years

since” Smith, we concluded the State failed to meet its burden of showing that

the signs and symptoms of marijuana intoxication had become common

knowledge. Id. at 587.

Although Bealor deemed lay testimony about the cause of non-alcohol

intoxication inadmissible, this Court’s opinion did not go so far as to require

the State to present expert testimony on the subject. Id. at 591. Instead,

Bealor held that expert testimony confirming the presence of marijuana in

defendant’s blood stream (such as toxicology evidence), in addition to other

evidence in the case, would suffice to prove that fact. Id. at 590. To hold

“that the nexus between the facts of intoxication and the cause of intoxication

can only be proved by expert opinion [] impermissibly impinges on the

traditional role of the factfinder and is explicitly disavowed.” Id. at 591.

13

The circumstances in Bealor illustrated that point. In that case, the

arresting officer offered fact testimony as to the defendant’s impaired conduct

and noted that he smelled burnt marijuana and found a smoking pipe with

marijuana residue in it at the time of the driver’s arrest. Id. at 578, 590.

Forensic scientists testified that the pipe did indeed contain marijuana and that

the defendant’s blood at the time of arrest contained marijuana. Id. at 581.

We held that the aggregate of such proofs would be “more than sufficient” to

establish that the driver was under the influence of marijuana through the

reasonable inference of the factfinder “to connect the objective facts of

intoxication with the proven presence of a cause of intoxication.” Id. at 590-

91.

Even so, we observed in Bealor that “expert testimony remains the

preferred method of proof of marijuana intoxication.” Id. at 592 (emphasis

added). We noted that, “[i]n view of their training, police officers in this State

are eligible to qualify as experts on marijuana intoxication under N.J.R.E.

702.” Ibid. More broadly, we acknowledged the training of police officers in

“detecting drug-induced intoxication” was “a required course of study” for

trainees. Id. at 592-93 (emphasis added).

14

In this appeal, the State has asked this Court to consider whether expert

testimony by a DRE is admissible to prove the cause of intoxication in DUID

cases. Bealor did not address that critical issue now before us.

II. Factual Background and Procedural History

With that backdrop, we turn to the facts 4 and procedural history of this

matter. For brevity, we generally incorporate by reference the details

meticulously set forth in the Special Master’s 332-page initial report and his

57-page supplemental report. We highlight certain details here.

A. Drug Recognition Experts (DREs) and the Drug Evaluation and

Classification Program

1. The 12-Step DRE Protocol

The Drug Evaluation and Classification Program (DECP) 5 has developed

a twelve-step protocol to assess whether a person suspected of drugged driving

4

Many facts in the massive record, such as those concerning the history of the

DRE program and its twelve component steps, are uncontroverted. We also

note the Office of the Public Defender, which served as lead defense counsel

for most of the hearings, has expressly advised the Court that it does not

dispute the Special Master’s credibility findings about the sixteen witnesses

who testified.

5

The original name for the program, the “Drug Recognition Expert program,”

was eventually changed to the DECP. Int’l Ass’n of Chiefs of Police, The

International Drug Evaluation & Classification Program: About the DECP,

https://www.theiacp.org/projects/the-international-drug-evaluation-

classification-program (last visited Nov. 8, 2023).

15

is impaired by a certain category or multiple categories of drugs. The protocol

is administered by trained police officers known as DREs. The protocol is

widely used in all fifty states, the District of Columbia, and the Canadian

provinces.6

To reach an opinion concerning a stopped motorist’s condition, DREs

combine their general observations, ordinary police work and investigative

tactics, standardized field tests, and observations of medically-related

manifestations of drug ingestion.

The twelve steps in the DRE protocol 7 consist of (1) a breath alcohol

test; (2) an interview of the arresting officer; (3) a preliminary examination

and first pulse check; (4) a series of eye examinations; (5) four divided

attention tests; (6) a second examination and vital signs check; (7) a dark room

examination of pupil size and ingestion sites; (8) an assessment of muscle

tone; (9) a check for injection sites and a third pulse reading; (10) an

interrogation of the driver and documentation of statements made by the driver

6

Int’l Ass’n of Chiefs of Police, States and Countries with DREs: DEC

Program States, https://www.theiacp.org/states-and-countries-with-dres (last

visited Nov. 8, 2023).

7

Although not all twelve steps were performed in Olenowski’s cases, we

stress that the best practice is to reasonably attempt all of the first eleven steps,

and, unless it is demonstrably infeasible, to complete the toxicology analysis

of step twelve. See our discussion below at Part VI (B).

16

as well as any other observations; (11) a final opinion based on the totality of

the examination; and (12) a toxicological analysis. See Special Master’s

Report of Findings and Conclusions of Law 4 (Aug. 22, 2022) (SM Report I).

We describe each of those steps in more detail.

Step 1: The breath alcohol test determines the driver’s blood alcohol

concentration. The test is used to determine whether alcohol may be the sole

or contributing cause of any observed signs of the driver’s impairment. The

DRE training materials emphasize that many drivers who are under the

influence of drugs also have alcohol in their systems.

Step 2: The specially trained DRE’s interview with the arresting officer

occurs because the specially trained DRE examining the driver usually will not

be the same officer who stopped or arrested that person. During this step, the

DRE can obtain information from the arresting officer that might be indicative

of the drug or drugs the driver has ingested. The information from the

arresting officer may include any observations of the driver’s behavior and of

the scene of the arrest, any statements offered by the driver during any

questioning, and any relevant physical evidence, such as drugs or drug

paraphernalia seized at the scene.

Step 3: The preliminary examination is the first opportunity for the DRE

to observe the driver closely. DRE training materials emphasize that a primary

17

purpose of this preliminary examination is to determine whether the driver has

an injury or other medical condition that may be related to drug use or

observed impairment. During the examination, the DRE takes the first of three

pulse measurements.

As noted in the training materials, the DREs at this step can also perform

some preliminary eye-related assessments and initial estimations preceding the

eye tests to be performed fully later in Steps 4 and 7. This step is intended to

help the DRE decide whether to continue with the evaluation, to proceed

instead with a drunk driving charge, or to refer the driver for medical

treatment. Drivers have the right to refuse to proceed with the DRE process.

Step 4: The eye examinations in this step are conducted because some

drugs produce observable effects on the eyes. The examinations conducted are

designed to assess equal tracking by the eyes and equal pupil size in both eyes.

Three tests are involved.

First, there is the horizontal gaze nystagmus (HGN) exam, which checks

for the lack of the smooth eye pursuit, sustained eye jerking at maximum

deviation (where the eye is turned as far to the side as possible), and the angle

of onset at which the eyes first begin to jerk, all while tracking the eyes in a

horizontal path following a stimulus. Second is the vertical gaze nystagmus

(VGN) exam, which tests the same factors as above, but by tracking the eyes

18

in a vertical path. Third, there is the lack of convergence (LOC) exam, which

checks how the driver’s eyes move together by tracking their coordinated

convergence when the DRE moves a finger or penlight towards the driver’s

nose (a point of convergence) until one or both eyes drift outward toward the

side instead.

Several of the State’s testifying experts asserted that the eye

examinations can reveal whether the driver has ingested drugs that may

detrimentally affect such things as the driver’s visual acuity, contrast

sensitivity, glare sensitivity, ability to track objects, coordination, and other

driving-related skills.

Step 5: The divided attention tests in Step 5 are comprised of four

psychophysical tests, including two of the three standard field sobriety tests

(SFSTs)8 developed to detect drunk driving.

The tests in this step consist of (1) the modified Romberg balance test,

which tests balance by requiring the driver to stand feet together, head tilted

back, with eyes closed and asked to estimate when thirty seconds has passed;

(2) the walk-and-turn test, which tests a driver’s ability to balance while

8

The three SFSTs were deemed the most accurate tests for determining

alcohol-caused impairment. The two psychophysical tests in this step that are

part of the three-test SFST battery are the walk-and-turn and one-leg-stand

tests. The third SFST is the HGN test, which is an eye exam covered

previously in Step 4.

19

standing heel-to-toe with the driver’s arms at the side and while the driver

takes heel-to-toe steps along a straight line pivoting to turn back to the starting

point; (3) the one-leg-stand test, which tests the driver’s balance on one leg

with the other leg raised and arms at the side, all while the driver counts out

loud while looking at the raised foot (done twice, once standing on each foot);

and (4) the finger-to-nose test, which involves the driver putting a fingertip to

the tip of the nose, while the driver’s eyes are closed and head is tilted back.

DREs are familiar with the components of Step 5 from prerequisite

training.9 The rationale for performing the tests in drugged driving cases is

that any drug that impairs driving ability will also impair the driver’s ability to

perform divided attention tests, which help evaluate a driver’s “psychomotor”

skills. Among other things, divided attention deficits may impair a driver’s

ability to maintain lane position on a roadway while monitoring the

surrounding environment.

Step 6: In this step, a second examination and vital signs check adds

another data point to the DRE’s evaluation. Although repetitive of Step 3,

Step 6 is undertaken because the effects of drugs on the body may arise at any

9

These psychophysical field sobriety tests were all developed to detect drunk

driving. The most robust training that DREs receive in administering them is

during their DWI Detection and SFST and Advanced Roadside Impaired

Driving Enforcement training sessions, which are prerequisites to being

admitted to the DRE training program.

20

time during the overall DRE protocol. The training materials emphasize that

blood pressure, pulse, and internal body temperature are “reliable indicators of

drug influence” that DREs should measure.

Step 7: This step entails a dark room examination. While in the dark

room, the DRE will measure the dilation of the driver’s pupil in response to a

light stimulus in three different lighting conditions. The examination at this

step involves changing the amount of light entering the driver’s eyes using a

penlight so that the DRE can observe the pupil’s appearance and reaction to

the light.

The training materials note that some drugs (such as marijuana) may

cause the pupils to widen, or dilate, and others (such as opioids) may cause the

pupils to narrow or constrict. The DRE will also examine areas of the body

where drugs are commonly ingested (nasal area and oral cavity) for signs of

drug use using a penlight.

Step 8: In this step, muscle tone examinations measure whether the

muscles in the driver’s arms are tense or, conversely, flaccid. The training

materials highlight that certain drugs tend to cause rigidity in the muscle,

while others are known to cause a “rubbery-like” flaccidity in the muscle.

Although this examination is sequenced at Step 8, the training materials also

inform DREs that muscle tone can be observed at many points of the

21

examination, including when taking the driver’s vital signs in Steps 3, 6, or 9,

when checking for injection sites in Step 9, or during the Step 5 divided

attention tests.

Step 9: The examination for injection sites in Step 9 enables the DREs

to observe any indications that the driver has injected drugs through

hypodermic needles, most commonly associated with heroin use. Injection of

certain drugs can cause lengthy scars, called “tracks,” and produce observable

sores or bruising. The injection sites typically examined appear on the driver’s

neck, forearms, wrists, and backs of the hands.

Step 10: At this step, the DRE interviews the driver as a means to

confirm or dispel any reasonable suspicions or opinions the DRE may have

about the driver’s impairment being caused by drug use, and any category of

drug that the indicators point towards. The training materials reflect that the

interview “can proceed only in conformance with formal admonition and strict

observance of the driver’s Constitutional rights.” The materials also note that

the interview procedures vary with the DRE’s suspicions and opinions about

the potential drug categories involved.

Throughout the examination, including this step, the DRE has been

recording the information gathered on a drug influence evaluation form,

known as a facesheet. DREs are also trained to record all spontaneous

22

statements and any responses by the driver, and to ask follow-up questions, as

appropriate, at any step.

Step 11: After conducting the first ten steps of the protocol, the DRE

reaches an opinion about whether the driver is under the influence of a drug or

drugs, and if so, the probable category or categories of drugs that are causing

the impairment. The opinion is “[b]ased on all of the evidence and

observations gleaned from the preceding steps.” The DRE consults with a

printed and standardized matrix that provides a reference tool for matching the

symptoms and indicators observed to seven categories of drugs: CNS

depressants, CNS stimulants, hallucinogens, narcotic analgesics, dissociative

anesthetics, inhalants, and cannabis. For each category, there is a grid with a

list of indicators and measurements that can be observed.

The DRE matrix disclaims that indicators listed on the matrix are only

those that “are the most consistent with the category” but “that there may be

variations due to individual reaction, dose taken and drug interactions.” The

matrix also notes that normal measurements and observations refer to the

population averages. The training materials additionally provide that the DRE

must record a narrative summary of the facts that form the basis for the

opinion.

23

Relatedly, DREs are trained to identify polydrug use, or the ingestion of

two or more drugs or a combination of drugs and alcohol. The training

materials instruct that “[i]t is actually more common for a [DRE] to encounter

polydrug users than single drug users.” For example, the materials identify

marijuana and alcohol as the most common polydrug mix and note that alcohol

was often found in combination with one or more drugs. 10

The training materials also discuss four effects of drug combinations on

clinical indicators of drug use that might impact the DRE’s use of the matrix:

the null effect, the overlapping effect, the additive effect, and the antagonistic

effect.

The null effect denotes a situation in which neither drug in the

combination affects a particular indicator of drug use, such that the

combination will also not affect that indicator.

The overlapping effect refers to a situation in which one drug does not

affect an indicator of drug use, but another drug does, and so the effect of the

latter drug appears.

10

Other common combinations listed in the materials include cocaine and

cannabis, cocaine and heroin, PCP and cannabis, PCP and heroin, crack and

PCP, and Xanax and methamphetamine. Many of the combinations have

common street names that the DREs are trained to recognize -- which may be

of particular significance in understanding any potential admissions made by

drivers.

24

The additive effect describes the result of two drugs that independently

affect an indicator in the same way, such that the effect may be reinforced and

appear more obviously or to a higher degree.

Lastly, the antagonistic effect describes the result of two drugs that

oppositely affect an indicator. In those cases, the DRE training materials

instruct that the two drugs “tend to try to override or compete” and that the

result is “unpredictable” -- typically, the drug which is more psychoactive at

the time determines which effect a DRE will observe, and usually that means

the drug with the longest duration of effect on the indicator is observable. The

DRE materials also instruct that the indicators of HGN, VGN, LOC, and

reaction of the eyes to the light will not show any antagonistic effect.

The DREs are provided with some examples of drug combinations and

their effect on certain indicators. They are also instructed that they will

receive additional examples through the model DRE evaluations that they

study in their training. For instance, the DRE materials provide the example of

the polydrug combination of CNS stimulants and CNS depressants, which has

an antagonistic effect on pulse rate.

Step 12: At this stage, after the DRE reaches an opinion, a toxicological

sample is requested from the driver, if the driver did not already provide a

specimen prior to the DRE’s arrival or during the examination (e.g., if a

25

bathroom break was necessary). Drivers have the right to refuse to provide a

specimen, and the training materials instruct DREs to not allow that refusal to

affect the evaluation or opinion reached. The materials also note that DREs

should follow the departmental policies on sample collection. Often the

arresting officer is the person who collects and retains the sample to be sent for

toxicological testing.

DREs are instructed that “[t]he toxicological examination is a chemical

test or tests designed to obtain scientific, admissible evidence to support the

DRE’s opinion.” As several of the State’s witnesses attested, the toxicology

exam does not, by itself, establish that the driver has been impaired by drug

usage. Instead, the toxicology exam evidences only the presence of drugs in

the driver’s body and might thereby “corroborate” the DRE’s clinical findings.

By the same token, a negative toxicology report does not necessarily mean the

driver was not impaired while behind the wheel. As we discuss further in this

opinion, drugs can dissipate within the body before a sample is taken.

Toxicology labs cannot test for all drugs.11 Some people may be impaired by

the presence of drugs below a toxicology lab’s numerical cutoff levels.

11

Among other things, the record indicates that (1) there are no tests available

for certain designer drugs and synthetic cannabinoids because those drugs are

continually being developed; (2) the State laboratory began testing for fentanyl

only in 2019, and the test is often not informative because fentanyl can be

26

2. Development of the DRE Protocol

The DECP and DRE protocol was created in the 1970s by the Los

Angeles Police Department (LAPD) with the assistance of the NHTSA. The

protocols were designed to combat a growing problem of “drugged driving”

which more easily evaded law enforcement detection than drunk driving. SM

Report I 76-79, 85. As drunk driving was also the subject of growing public

concern, the NHTSA made efforts to research reliable methods of testing

sobriety, including the three-test battery that comprises the SFSTs in the DRE

protocol. Id. at 79-86.

After two key studies (the 1985 “Bigelow” study and the 1986

“Compton” study) 12 evaluating the reliability of the entire DRE protocol were

conducted in the 1980s, the NHTSA and LAPD, in consultation with doctors,

toxicologists, and emergency nurses, among other professionals, developed a

curriculum to train DREs. Id. at 86-90. Those efforts culminated in the first

symptomatology matrix to serve as a reference tool for DREs in rendering

their opinions. Id. at 91.

toxic at low concentrations; and (3) the State laboratory also does not test for

MDMA (ecstasy) or LSD because it is ingested in such small quantities.

12

See G.E. Bigelow et al., Identifying Types of Drug Intoxication: A

Laboratory Evaluation of Subject-Examination Procedures (1985); Richard

Compton, Field Evaluation of the Los Angeles Police Department Drug

Detection Procedure (1986).

27

In 1987, the International Association of Chiefs of Police (IACP) began

to participate in the development and national expansion of the DECP and, at

NHTSA’s request, to oversee the credentialing of DREs. Id. at 91-92.

In 1988, again at the NHTSA’s request, the IACP established the

Technical Advisory Panel (TAP), which develops criteria for training and

certifying DREs, and continually improves the DRE protocol. Ibid. The TAP

typically consists of a physician, a behavioral optometrist, and a toxicologist,

as well as DREs and educational institutions. Ibid.

The DECP expanded outside of Los Angeles in 1987 and began in New

Jersey in 1991. Id. at 93. As of December 2022, the IACP has certified over

400 DREs in New Jersey, the second most of any state in the nation. 13

Presently, there are over sixty certified DRE instructors in this State who train

officers in the protocol.

B. Defendant’s DRE-Based Convictions and Ensuing Appeals

The Special Master’s appointment was prompted by the prosecutions of

defendant Michael Olenowski, who was twice subjected to the DRE protocol,

for suspected drug-impaired driving.

13

DEC Program States, https://www.theiacp.org/states-and-countries-with-

dres.

28

In February 2015, Olenowski was pulled over by a municipal police

officer for not wearing a seatbelt. The officer conducting the stop detected the

odor of alcohol, triggering field sobriety tests and a full DRE examination at

police headquarters by a certified DRE. The DRE concluded that Olenowski

“[wa]s under the influence of a CNS Depressant, CNS Stimulant and Alcohol.”

A separate incident involving Olenowski occurred in August 2015.

Police officers were dispatched to the scene of an accident in which a car,

driven by Olenowski, had run off the road, striking a telephone pole and

sustaining “significant” damage. The responding officers detected signs of

possible impairment, including slurred speech, balance trouble, and a lack of

responsiveness. After speaking with the officers about the circumstances of

the accident, Olenowski agreed to perform field sobriety tests. Eventually, he

was arrested and transported back to headquarters where a different certified

DRE conducted the protocol. The DRE concluded that Olenowski “[wa]s

under the influence of a CNS Depressant, as well as a CNS Stimulant.”

At each of the municipal court trials for the two DUID charges, the

prosecutor introduced DRE testimony to prove that Olenowski had been

driving while under the influence of a central nervous system depressant and

stimulant. After a ----

Frye hearing during the first trial, the municipal court

admitted the DRE testimony as reliable but acknowledged that Olenowski had

29

presented “impressive” evidence that it should not be accepted. Olenowski

had called his own expert in rebuttal to criticize the DRE protocol, and he

relied on that testimony in both trials. In both cases, the municipal court

convicted Olenowski.

The Law Division upheld the admissibility of DRE evidence under Frye

and affirmed each of the convictions after a de novo trial. The Appellate

Division affirmed the convictions, finding they were supported by sufficient

evidence even without the DRE testimony, but also holding it appropriate for

the municipal court and Law Division to rely on the DRE evidence and

agreeing with the Law Division analysis that DRE evidence was generally

accepted under Frye.

C. This Court’s Review and the Special Master Proceedings

This Court first granted certification in this case to determine whether

DRE testimony is admissible under the Frye “general acceptance”

admissibility standard. 236 N.J. 622 (2019). We heard oral argument in

October 2019, after which we concluded in an order that “the existing factual

record [wa]s inadequate to test the validity of DRE evidence.” 247 N.J. 242,

244 (2019). We then designated the Honorable Joseph F. Lisa, a retired

Presiding Judge of the Appellate Division on recall, as Special Master. Ibid.

We asked him through our order of appointment to conduct “a plenary hearing

30

to consider and decide whether DRE evidence has achieved general acceptance

within the relevant scientific community and therefore satisfies the reliability

standard of N.J.R.E. 702.” Ibid.

1. Special Master Hearing and SM Report I: Admissibility Under

the Frye Standard

The Special Master conducted an extensive Frye hearing over forty-two

days, including hearing testimony from sixteen witnesses from both parties and

amici.14 Hundreds of exhibits were admitted during the hearing, creating the

fulsome record now before us in this appeal.

Part of the discovery process leading up to that hearing included the

Public Defender’s request for the State to produce statewide records of all

DRE cases for statistical review. That New Jersey “retrospective data”

spanning from 2017 to 2018 plays a significant role in the resolution of this

appeal. The collected data encompassed 5,855 DRE reports. Of that total,

only 2,551 were non-training cases that included a toxicology report for

corroboration of the DRE conclusion. That particular segment of the data was

14

We commend the Special Master, counsel, and the court staff for their

extraordinary cooperative and dedicated efforts in taking part in these

proceedings, at times remotely or with social distancing measures, for two

years from January 2020 to January 2022 through the peak of the COVID-19

pandemic.

31

at the forefront of the case. In about 27% of the 5,855 cases, there was no

toxicology report for various reasons.

During the early stages of the proceedings before the Special Master,

Olenowski passed away. At that point, all parties agreed that the proceedings

to develop a record for the Court concerning DRE admissibility should

nonetheless proceed, given the public importance of the issue. This Court

instructed the Special Master to continue with the hearing despite the apparent

mootness of Olenowski’s appeal. See Malanga v. Township of West Orange,

253 N.J. 291, 307 (2023) (quoting Redd v. Bowman, 223 N.J. 87, 104 (2015));

State v. Cassidy, 235 N.J. 482, 491 (2018). Later, Olenowski’s personal

attorney discontinued his participation in the hearings. The Public Defender

maintained the lead role as advocate for the defense throughout the hearing, as

a prerequisite to hiring experts in the case.

In August 2022, the Special Master released a 332-page report

concluding that DRE evidence should be admissible under the Frye standard of

reliability of expert testimony. SM Report I 331.

After his review of the extensive record, the Special Master concluded

that the DRE protocol and its various components were generally accepted in

the relevant scientific communities (specifically, medicine and toxicology)

because (1) “the DRE protocol replicates generally accepted medical practices

32

for identifying the presence of impairing drugs and their likely identity”; (2)

“the DRE matrix comports with matrices . . . generally accepted and used in

the medical field”; and (3) “the training DREs receive is comparable to that

received by medical technicians.” Ibid.

In the course of his decision, the Special Master expressly commented

on the credibility of each of the sixteen witnesses who testified. In general, he

regarded the State’s experts as more credible than the defense witnesses,

although he recognized that many of the witnesses on both sides had biases in

favor of or opposed to the DRE program. The Special Master explained in

detail why he considered the testimony of each witness especially credible or

less credible. See id. at 20-76.15

The Special Master summarized his initial findings about the reliability

of individual components of the protocol as follows. First, he reiterated that

DRE testimony implicates two aspects of expertise: (1) “specialized

knowledge that DREs acquire that enable[s] them to reliably administer the

tests and make the observations and gather the information required by the

DRE protocol and . . . to determine whether the driver is impaired by drugs

15

Significant portions of the expert witnesses’ testimony will be explored

later in Part V. The Special Master also supported his credibility findings with

more detailed information about the witnesses and the substance of their

testimony. See SM Report I at 20-76.

33

and if so by which category or categories in the DRE matrix”; and (2)

“scientific expertise” underlying “[t]he validity of the DRE matrix and the

procedures and methods for applying it.” Id. at 307-08.

Second, the Special Master determined that “the appropriate scientific

communities are medicine and toxicology,” not the traffic-safety research

community. Id. at 309-10. He concluded that those communities -- although

unfamiliar with the DRE protocol -- have “impliedly generally accepted” the

protocol because “it is in all material respects the same as [their protocol used

in emergency medicine for toxidrome recognition], including the level of

training required.” 16 Id. at 310.

The Special Master further noted that Steps 1 and 12 of the protocol are

“clearly scientific in their entirety” and that some steps are “scientifically

based” (e.g., checking pulse and vital signs, eye examinations), while other

steps are “clearly not scientific” (e.g., checking for injection marks and drug

paraphernalia, interrogating the driver and others). Id. at 310-15. He

concluded that all the steps were reliable. Ibid.

16

A “toxidrome” is another term for a “toxic syndrome,” which refers to a

combination of findings and symptoms that is “suggestive of a diagnosis” of a

condition caused by a toxin, like a drug. SM Report I 128-30. Toxidrome

recognition is “‘widely used in most medical specialties,’ including emergency

medicine in particular.” Id. at 129.

34

Third, the Special Master found that a DRE “would never form an

opinion that would be accepted as reliable based upon any one or even a few

isolated factors.” Id. at 315. Rather, “[a]ll of the observations must be taken

into consideration and assessed together.” Ibid. In so finding, he also

concluded that toxicological testing -- Step 12 of the protocol -- should not be

a prerequisite to the admission of a DRE opinion because “toxicology is not

considered by the DREs and plays no role in forming their opinions.” Id. at

318. Instead, he wrote that toxicology is merely “another piece of evidence for

the factfinder that corroborates, or fails to corroborate, the DRE opinion --

potentially affecting the weight accorded [to] the opinion but not affecting its

admissibility.” Ibid.

In addition, the Special Master identified several limitations of the DRE

protocol, including (1) the various scientific limitations associated with

toxicological testing and (2) situations in which the driver refuses to provide a

urine sample. Id. at 315, 317. He found that those limitations were just other

factors for the factfinder to consider in a particular case, rather than an

indictment of the entire protocol’s reliability. He noted the DRE evidence

would be subject to credibility assessments and weight allocations as the

factfinder deems appropriate. Id. at 319, 331.

35

2. Olenowski I: Adoption of the Daubert Admissibility Standard

Following the first report, we accepted additional briefing from the

parties and amici. In those briefs, as in submissions to the Special Master

before the release of his first report, several counsel focused upon error rates

associated with DRE evidence. Because error rates are expressly considered

under Daubert, but not Frye, we asked the parties and amici to submit

supplemental briefing on “whether this Court should depart from Frye and

adopt the principles of Daubert in criminal cases.” Both parties and nearly all

of the amici advocated that we adopt the Daubert standard, similar to our

previous adoption of Daubert-based principles for civil cases in In re Accutane

Litigation, 234 N.J. 340 (2018).

In our first opinion dated February 17, 2023, we prospectively adopted a

“Daubert-type standard” for determining the reliability of expert evidence in

criminal and quasi-criminal cases. Olenowski I, 253 N.J. at 153. Identifying a

number of difficulties with maintaining the Frye approach, we concluded that

“Daubert offers a superior approach to evaluate the reliability of expert

testimony.” Id. at 139, 150-52. The Daubert analysis involves multiple

factors, which we discuss in depth below.

We consequently remanded this matter to the Special Master to apply the

Daubert-type standard, directing that, in his discretion, he could “rule on the

36

basis of the existing record, or ask for and accept additional evidence, briefin g,

and argument from the parties and amici.” Id. at 155.

After a case management conference at which all counsel agreed the

record was complete, the Special Master ordered that the record would not be

reopened. He further ordered the parties, and permitted amici, to “file

supplemental briefs regarding the application of Daubert principles to the

evidence presented in the Special Master proceeding.”

3. SM Report II: Applying the Daubert Standard

After briefing, the Special Master released on April 13, 2023 a 57-page

Supplemental Report of Findings of Fact and Conclusions of Law (SM Report

II). In that second report, the Special Master concluded that the State “clearly

established that the DECP and the twelve-step DRE protocol satisfy the

reliability standard of N.J.R.E. 702 when analyzed under the methodology -

based Daubert-Accutane standard.” Id. at 56. He further concluded that

“DREs can be and are adequately trained to reliably perform the steps in the

protocol,” thereby satisfying N.J.R.E. 702’s requirement that the witness have

“sufficient expertise” to offer the testimony. Id. at 6, 57. The Special

Master’s Daubert analysis largely cross-referenced the analysis in his earlier

report, and he directed at the outset of the second report that it “must be read

in conjunction” with the first. Id. at 1, 55.

37

The Special Master analyzed each of the Supreme Court’s Daubert

factors as follows. First, he found that the DRE protocol had been “studied

extensively over a number of decades.” Id. at 22. He concluded that “Daubert

factor one provides substantial support for [his] finding of reliability of the

DRE protocol.” Id. at 26. The Special Master rejected the Public Defender’s

argument that the DRE protocol had never been tested for its ability to detect

drug-impaired drivers because it had only been tested as to whether it could

identify drug presence in drivers (i.e., tested against toxicology results), but

not drug-induced impairment. Notwithstanding that distinction, the Special

Master was satisfied that sufficient relevant testing had supported the

reliability of DRE opinion testimony.

As to the second Daubert factor, the Special Master concluded that many

of the key studies on the reliability of the DRE protocol -- which he found to

be supportive of its reliability -- had been published in peer reviewed journals.

Id. at 26-28. He also found that earlier studies -- although published by

NHTSA rather than a peer reviewed journal -- had been “reviewed by other

scientists as part of the internal agency review process before publication.” Id.

at 27. Thus, he concluded that the second Daubert factor “provides substantial

support” for his reliability finding. Id. at 29.

38

Acknowledging that the third Daubert factor contains two components --

(1) the known or potential rate of error, and (2) the existence of standards

governing the operation of the particular scientific technique -- the Special

Master concluded that both components weighed in favor of reliability. Id. at

29, 38-39.

As to the error rate component, the Special Master made several

observations. He noted that the alleged false positives -- which comprise

instances in which a DRE opined impairment, but the toxicology result was

negative -- were not necessarily “errors,” due to the limitations of

toxicological testing. Id. at 30. He found that a negative toxicology result

does not prove that the DRE opinion was “wrong.” Ibid. He concluded that

“in this context, error rates . . . can at best be described as a conservative

metric. . . . The error rate might actually be lower.” Id. at 32.

Further, the Special Master highlighted the apparent low error rates and

high accuracy rates reflected in three key peer reviewed studies, known as the

Beirness/Canada, Vaillancourt, and Hardin studies. 17 Id. at 34. Regarding the

17

See Douglas Beirness et al., The Accuracy of Evaluations By Drug

Recognition Experts in Canada, 42 Can. Soc. Forensic Sci. J. 75 (2009); Lucie

Vaillancourt et al., Drugs and Driving Prior to Cannabis Legalization: A Five-

Year Review from DECP (DRE) Cases in the Province of Quebec, Canada,

149 Accident Analysis & Prevention (2021); Glenn G. Hardin et al., Minn.

Dep’t of Pub. Safety, Minnesota Corroboration Study: DRE Opinions and

Toxicology Evaluations (Apr. 1993).

39

New Jersey retrospective DRE data, the Special Master acknowledged that a

false positive rate could not be reliably calculated due to the small number of

cases that produced negative toxicology results. Id. at 35. However, he

concluded that the “low number of false positives is a favorable factor in

supporting the reliability of the process.” Ibid. He considered that the low

number of false positives might result from the high-prevalence population of

drivers evaluated, namely drivers who both “(1) displayed affirmative signs of

impairment sufficient to provide probable cause to arrest for driving under the

influence, and (2) have a BAC level . . . that shows either no or limited alcohol

consumption.” SM Report I at 273; see also SM Report II at 35-36. However,

he deemed that concern overblown. SM Report II at 35-36. The Special

Master also recognized that although testing the general driving population

might allow for the calculation of a reliable false positive rate, subjecting all

drivers to such testing -- including those who could not be arrested for drunk

driving for lack of probable cause -- would trigger constitutional and practical

constraints. SM Report I at 272-73; SM Report II at 27, 36.

As for the latter component of the third Daubert factor -- standardization

-- the Special Master found the history of the DECP and DRE protocol and the

rigorous training requirements for DRE certification significant. SM Report II

40

at 38. He also observed that the Public Defender’s brief had not focused its

arguments upon this particular component of the third factor. Ibid.

Overall, the Special Master determined that both components of the third

Daubert factor supported and corroborated his finding of reliability, subject to

the limitations of the toxicology in the protocol. Id. at 38-39.

Finally, the Special Master concluded that the fourth Daubert factor --

general acceptance -- provides “substantial support” for his reliability

determination. Id. at 54. He reiterated his finding from the first report that the

DRE protocol had been generally accepted by the medical and toxicological

communities by implication. See id. at 39, 41-42, 53. He specifically found

that the “methodology” relied on by DREs is generally accepted within those

professional communities. Id. at 53. As he stated, “it is the methodology that

is dispositive, rather than knowledge of the overall DRE protocol.” Id. at 53-

54.

The Special Master rejected the Public Defender’s argument that there

could not be implied general acceptance because the DRE protocol does not

adhere to the differential diagnosis process, which the Public Defender

characterized as “the only reliable method used in the medical and

toxicological fields to determine drug impairment as the cause of observed

signs and symptoms.” Id. at 40-41, 49-50. He explained that the context in

41

which a differential diagnosis typically occurs (i.e., an individual in significant

distress seeks immediate medical treatment from an emergency physician)

differs from the context in which a DRE evaluation occurs (i.e., an individual

displays affirmative signs of impaired driving; is stopped, observed,

questioned, and searched by the police; is discovered to have a “zero BAC or

very low BAC that is inconsistent with the driver’s behavior”; and is then

arrested and taken to the stationhouse for a DRE evaluation). Id. at 42-43.

The primary difference is that the driver who is subject to the DRE protocol is

not ordinarily seeking medical attention. Id. at 44-45. Hence, the driver’s

condition “is typically sufficiently differentiated to point the DRE in the

direction of probable drug use as the cause of impairment.” Ibid.

The Special Master further noted that DREs, although they are not

physicians or medical professionals, are trained to be familiar with potential

non-drug causes of impairment (e.g., bipolar disorder, diabetes, head trauma,

seizures) and required to ask questions about the driver’s medical conditions

and prescription medications. Id. at 43-44.

III. Arguments of the Parties and Amici

Following the release of SM Report II, the Court ordered the parties and

amici to submit briefs addressing the report and specifically requested that the

briefs also “address the appropriate standard of review for appeals from a

42

determination under the Daubert standard.” Those briefs, and the second oral

argument that followed, focused on both the standard of review and the merits

of the Special Master’s analysis of the Daubert factors.

Briefly summarized, the Public Defender and the associated amici 18

essentially contend that a de novo standard of appellate review should apply to

a Daubert-based determination of reliability in New Jersey criminal cases. In

opposition, the State and the prosecution-aligned amici 19 contend that the

standard of review should be whether the reliability determination below was

an abuse of discretion.

As for the merits, the Public Defender and the defense-aligned amici

maintain that the Special Master erred in finding the DRE testimony is

sufficiently reliable under the Daubert factors and urge that it instead must be

excluded in all DUID prosecutions. As a fallback position, the Public

Defender contends that, if we are unpersuaded by their arguments for complete

18

The defense-aligned amici curiae are the New Jersey State Bar Association;

the National College for DUI Defense; the Association of Criminal Defense

Lawyers of New Jersey; the DUI Defense Lawyers Association; and the

American Civil Liberties Union of New Jersey, joined by three statistics

experts.

19

The prosecution-aligned amici curiae are the County Prosecutors

Association of New Jersey and the New Jersey State Association of Chiefs of

Police. The Attorney General had previously been amicus curiae in the appeal

but replaced the Morris County Prosecutors Office in representing the State.

43

exclusion, we should allow DRE testimony to be admitted only with various

strict limitations, several of which we will discuss in Part VI. In response, the

State and the prosecution-aligned amici contend that the Special Master

correctly applied the Daubert factors and that we should therefore affirm his

findings of reliability and admissibility without imposing any constraints.

IV. Standard of Review of Expert Reliability Rulings

In our earlier decision in this case adopting Daubert factors to evaluate

the admissibility of expert testimony in New Jersey criminal cases, we did not

address the novel question of what standards should guide the appellate review

of such Daubert-based rulings, reserving that for a later day. That day has now

arrived. We have the benefit of additional briefing of the parties, as well as

the specific context of this appeal as an illustrative opportunity to apply those

review standards.

We preface our resolution of this issue with a short discussion of our

past traditions. Most evidentiary rulings by New Jersey trial judges have been

reviewed on appeal by considering whether the judges abused their discretion

in admitting or excluding proofs. Such rulings are generally upheld “unless

the evidentiary ruling is ‘so wide of the mark’ that it constitutes ‘a clear error

in judgment.’” State v. Allen, 254 N.J. 530, 543 (2023) (quoting State v.

Garcia, 245 N.J. 412, 430 (2021)). That highly deferential general standard is

44

subject to the appellate court’s obligation to provide relief in situations in

which the trial court’s decision was “clearly capable of producing an unjust

result.” R. 2:10-2.

As noted, before our February decision in this case, the Frye standard of

general acceptance guided the admissibility of scientific or other expert

opinion testimony in New Jersey criminal cases. 253 N.J. at 143. But even on

appeal of such Frye-based rulings in criminal cases, our courts traditionally did

not apply an unqualified abuse of discretion standard of review. Instead, our

case law recognized that a trial court’s reliability determination under Frye --

i.e., its determination of whether the relevant scientific community generally

accepts a scientific theory, test, or technique -- ought to receive less deferential

review than other evidentiary decisions. See State v. Harvey, 151 N.J. 117,

167-68 (1997).

As we stated in Harvey, “[t]o the extent that [reliability] focuses on

issues other than a witness’s credibility or qualifications, deference to the trial

court is less appropriate.” 151 N.J. at 167. In Harvey, we acknowledged that

appellate courts generally review a trial court’s admissibility determinations

for an abuse of discretion. Id. at 166. However, we concluded that this usual

standard of review may not be appropriate for Frye reliability determinations

for two reasons.

45

First, “[u]nlike many other evidentiary issues, whether the scientific

community generally accepts a methodology or test can transcend a particular

dispute.” Id. at 167. “In determining the general acceptance of novel

scientific evidence in one case, the court generally will establish the

acceptance of that evidence in other cases.” Ibid.

Second, “[l]ike trial courts, appellate courts can digest expert testimony

as well as review scientific literature, judicial decisions, and other authorities.”

Ibid. Appellate courts routinely “scrutinize the record” in appeals and can

“independently review the relevant authorities.” Ibid.

We reiterated the propriety of such a less deferential approach in a later

criminal appeal, State v. Torres, observing that “the appellate court need not be

as deferential to the trial court’s ruling on the admissibility of expert scientific

evidence as it should be with the admissibility of other forms of evidence.”

183 N.J. 554, 567 (2005).

More recently, we went further in State v. J.L.G. and instructed that Frye

reliability determinations in criminal cases should be reviewed de novo. 234

N.J. 265, 301 (2018) (“Whether expert testimony is sufficiently reliable to be

admissible under N.J.R.E. 702 is a legal question we review de novo.”).

Our tradition in civil cases has been different. In Accutane, we held that

trial courts’ expert reliability determinations in civil matters are to be reviewed

46

under the abuse of discretion standard. 234 N.J. at 392. Our opinion in

Accutane pointed out that none of the key civil cases 20 applying a

methodology-based approach such as the Daubert reliability factors “[spoke] to

any such less-deferential standard.” Id. at 391.

The Court’s adoption in Accutane of an abuse of discretion review

standard for Daubert rulings in civil appeals coincides with the standard used

in federal appeals prescribed by the United States Supreme Court in General

Electric Co. v. Joiner. See 522 U.S. 136, 139 (1997). The Supreme Court

provided limited reasoning for choosing this standard of review. See id. at

141-42. Noting that the change from Frye to Daubert did not fundamentally

alter the gatekeeping role of the trial court in admitting expert testimony, the

Court announced “that abuse of discretion is the proper standard of review of a

district court’s evidentiary rulings.” Id. at 142.

Joiner did not explain why Daubert reliability determinations should be

reviewed under the same standard of review as other types of evidentiary

decisions. In fact, the question was not squarely litigated before the Court, as

the parties in Joiner agreed that abuse of discretion was the appropriate

20

See Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991); Landrigan v.

Celotex Corp., 127 N.J. 404 (1992); Kemp ex rel. Wright v. State, 174 N.J.

412 (2002).

47

standard of review. Id. at 141. They differed only about whether a more

robust form of abuse of discretion review was appropriate in the case. Ibid.

Other Jurisdictions

Some federal circuit courts have placed a gloss on Joiner’s abuse of

discretion approach.21 For instance, the Seventh Circuit uses a “two-step

standard of review.” C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 835

(7th Cir. 2015). First, it “review[s] de novo a district court’s application of the

Daubert framework.” Ibid. Second, if it determines that “the district court

properly adhered to the Daubert framework,” it “review[s] [the district court’s]

decision to exclude (or not to exclude) expert testimony for abuse of

discretion.” Ibid.

In Textron, the Seventh Circuit’s de novo review of the district court’s

application of Daubert delved into the details and design choices of the studies

underlying the expert opinion. See id. at 836. Then in the second step, the

circuit court found that it was not an abuse of discretion to exclude an expert

when there was “‘too great an analytical gap between the data and opinion

21

Legal scholarship has spotlighted how the federal circuits have differed in

the level of scrutiny applied to trial court Daubert determinations. See, e.g.,

Sean Ryan, Backfire: Abandoning the Abuse of Discretion Standard of

Review for Daubert Rulings Shoots Trial Courts in the Foot, 47 U. Tol. L.

Rev. 349, 365-67 (2016); Victor E. Schwartz & Cary Silverman, The Draining

of Daubert and the Recidivism of Junk Science in Federal and State Courts , 35

Hofstra L. Rev. 217, 262-66 (2006).

48

proffered’ such that the opinion amounts to nothing more than the ipse dixit of

the expert.” Id. at 837 (quoting Joiner, 522 U.S. at 146).

The Tenth Circuit, by comparison, engages in a more deferential form of

a two-step standard of review. As the court explained in Norris v. Baxter

Healthcare Corp., it first “review[s] de novo whether the district court applied

the proper standard in determining whether to admit or exclude expert

testimony -- that is, whether the district court properly performed its role as

‘gatekeeper’ pursuant to Federal Rule of Evidence 702 and Daubert.” 397

F.3d 878, 883 (10th Cir. 2005) (citation omitted). Second, the Tenth Circuit

“then review[s] the manner in which the district court ‘exercises its Daubert

“gatekeeping” role in making decisions whether to admit or exclude testimony’

for an abuse of discretion.” Ibid. (quoting Bitler v. A.O. Smith Corp., 391

F.3d 1114, 1119 (10th Cir. 2004)). 22

Conversely, several states have rejected an abuse of discretion review

standard for Daubert-based reliability determinations. Most notably, in State

v. Sharpe, the Alaska Supreme Court adopted a hybrid standard of review in

22

More specifically, at the first step, the Tenth Circuit considers whether the

Daubert test was indeed applied and is “not necessarily concerned with . . .

‘exact conclusions reached to exclude or admit expert testimony.’” Ibid.

(quoting Bitler, 391 F.3d at 1119). The second step analyzes the reliability

determination, recognizing the trial court’s “wide discretion both in deciding

how to assess an expert’s reliability and in making a determination of that

reliability.” Ibid. (quoting Bitler, 391 F.3d at 1120).

49

the context of a criminal appeal. 435 P.3d 887, 889 (Alaska 2019). It held

that the trial court’s preliminary factual determinations should be reviewed in a

deferential manner for clear error. Ibid. However, the trial court’s eventual

decision on whether the scientific theory or technique is sufficiently reliable

under Daubert “is a question of law to which [appellate courts should] apply

[their] independent judgment.” Id. at 889-90, 900. Rulings on other “case-

specific” requirements for the admissibility of expert evidence should be

reviewed for an abuse of discretion. Id. at 900 n.89. Such rulings include

whether the evidence is helpful to the trier of fact, and whether the relevant

theory or technique can properly be applied to the facts in issue. Ibid.

In adopting that hybrid standard of review, the Sharpe Court overturned

an earlier decision, State v. Coon, 974 P.2d 386 (Alaska 1999), which had

adopted an abuse of discretion review standard for Daubert reliability

determinations. 435 P.3d at 896, 899. The Sharpe Court relied heavily on the

dissenting opinion in Coon, which similarly advocated for a hybrid standard of

review. See Coon, 974 P.2d at 403 (Fabe, J., concurring in part and dissenting

in part). That dissent drew a qualitative distinction between evidentiary

rulings that are case-specific (such as relevance) and should be reviewed on

appeal for abuse of discretion, and rulings that are not (such as the validity of

scientific theories or techniques), which should be reviewed de novo. Ibid.

50

The dissent in Coon cautioned that an abuse of discretion review on Daubert

reliability questions would lead to inconsistent rulings and thereby undermine

predictability in the law and public confidence in the justice system. Id. at

404-05.

The Sharpe Court echoed the Coon dissent’s concerns in emphasizing

that abuse of discretion review “raises at least the appearance of arbitrariness,

i.e., the appearance that the outcome of a Daubert determination . . . depends

more on which judge was assigned to the case than on the objective application

of law to the evidence presented.” 435 P.3d at 898. Such an appearance, the

Court highlighted, “has the potential to raise serious questions in the eyes of

the public about the integrity of [the state’s] judicial system.” Ibid. Further,

the Court found arbitrariness to be especially problematic “in the context of

serious criminal proceedings.” Ibid. (emphasis added).

Sharpe predicted that a less deferential standard of review “would allow

trial courts and parties to avoid repeatedly relitigating the validity of scientific

evidence, saving the court and parties the time, effort, and cost of a Daubert

hearing -- at least absent new or previously overlooked research and

evidence.” Id. at 899. Additionally, Sharpe reasoned that appellate courts

would often have more time than trial courts to “careful[ly] study . . .

51

secondary sources such as scientific treatises and surveys of academic

literature in the relevant field.” Ibid.

Apart from Alaska, several other states apply a stricter standard of

review than abuse of discretion to Daubert-based reliability determinations.

See, e.g., Lee v. Martinez, 96 P.3d 291, 296 (N.M. 2004) (determining that

both the special master’s legal conclusions and findings of fact were subject to

de novo review); Taylor v. State, 889 P.2d 319, 331-32 (Okla. Crim. App.

1995) (holding that “independent” review “not limited by deference to the trial

judge’s discretion” was appropriate for Daubert determinations); State v.

Dahood, 814 A.2d 159, 161-62 (N.H. 2002) (noting that review of evidentiary

determinations is generally deferential but that, “[w]hen the reliability or

general acceptance of novel scientific evidence is not likely to vary according

to the circumstances of a particular case, . . . we review that evidence

independently”); State v. Beard, 461 S.E.2d 486, 492 n.5 (W. Va. 1995)

(noting that the proper standard of review for a determination about the

admissibility of scientific evidence is de novo); State v. Lyons, 924 P.2d 802,

805 (Or. 1996) (same); see also People v. Doolin, 198 P.3d 11, 53 (Cal. 2009)

(noting that appellate courts defer to a trial judge’s factual and credibility

findings, but decide admissibility as a “matter of law” based on those

findings).

52

Other states, as we did in J.L.G., 234 N.J. at 301, review reliability

determinations under the Frye standard de novo. See State v. Cauthron, 846

P.2d 502, 505 (Wash. 1993) (en banc) (determining that “the proper standard

of review of the trial court’s decision [of admissibility under Frye] is de

novo”), abrogated in other part by State v. Buckner, 941 P.2d 667 (Wash.

1997) (en banc); In re Commitment of Simons, 821 N.E.2d 1184, 1189 (Ill.

2004) (overturning a previous decision that had adopted abuse of discretion

review); Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000) (pointing out

the potential for inconsistent rulings under abuse of discretion review); see

also Brim v. State, 695 So. 2d 268, 274 (Fla. 1997). 23

We acknowledge that several other states apply an abuse of discretion

standard of review to reliability determinations under Frye or Daubert. See,

e.g., In re Costco Stormwater Discharge Permit, 151 A.3d 320, 331 (Vt. 2016);

Rochkind v. Stevenson, 236 A.3d 630, 651 (Md. 2020); Thomas v. Lewis, 289

So. 3d 734, 738 (Miss. 2019); Walsh v. BASF Corp., 234 A.3d 446, 456 (Pa.

2020); Schafersman v. Agland Coop, 631 N.W.2d 862, 868, 871 (Neb. 2001);

Commonwealth v. Mathews, 882 N.E.2d 833, 844 (Mass. 2008). The Supreme

Court of Vermont, for example, has held that abuse of discretion review is

23

Florida has since adopted the Daubert standard. See In re Amends. to the

Fla. Evidence Code, 278 So. 3d 551, 551-52 (Fla. 2019). The Florida Supreme

Court has not addressed the standard-of-review issue under Daubert.

53

appropriate in this context because a reliability determination “depends heavily

on the record made in the trial court and the credibility of the expert witness

presenting the disputed evidence.” USGen New England, Inc. v. Town of

Rockingham, 862 A.2d 269, 277 (Vt. 2004).

Legal Scholarship

Commentators are divided on the standard of review issue. One

commentator, writing in support of an abuse of discretion standard, contends

that trial courts are better equipped to make reliability determinations than

appellate courts, which are “less experienced in evidentiary determinations,

removed from the heat of the moment of trial, and working with a cold trial

record.” Ryan, 47 U. Tol. L. Rev. at 370.

Other commentators advocate for a stricter standard of review than

abuse of discretion. For example, one scholar asserts that it is “inappropriate

to view [the] threshold question of reliability as a matter within each trial

judge’s individual discretion” because “the reliability of a scientific technique

or process does not vary according to the circumstances of each case.” Paul C.

Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United

States, a Half-Century Later, 80 Colum. L. Rev. 1197, 1223 (1980) (quoting

Reed v. State, 391 A.2d 364, 367 (Md. 1978)).

54

Several commentators suggest a hybrid approach, applying de novo

review for reliability determinations, but abuse of discretion review for the

application of that scientific methodology to the facts of a particular case. 24

“When the scientific evidence transcends the particular case, the appellate

court should apply a ‘hard-look’ or de novo review to the basis for the expert

opinion.” David L. Faigman, Appellate Review of Scientific Evidence Under

Daubert and Joiner, 48 Hastings L.J. 969, 976 (1997). However, “[w]hen the

scientific evidence involves facts specific to the particular case, the appellate

court should defer to the trier of fact.” Ibid.

It has also been observed that appellate courts have more “time and

distance to become familiar with . . . complex science” and that “appellate

judges sit on panels and thus have the benefit of shared experience and

expertise.” Id. at 979; see also Christopher B. Mueller, Daubert Asks the

24

See, e.g., Amy B. Hargis & Joe R. Patranella, Rethinking Review: The

Increasing Need for A Practical Standard of Review on Daubert Issues in Place

of Joiner, 52 S. Tex. L. Rev. 409, 422, 424 (2011); David L. Faigman,

Appellate Review of Scientific Evidence Under Daubert and Joiner, 48

Hastings L.J. 969, 976, 979 (1997); Developments in the Law -- Confronting

the New Challenges of Scientific Evidence, 108 Harv. L. Rev. 1481, 1529

(1995); see also Christopher B. Mueller, Daubert Asks the Right Questions:

Now Appellate Courts Should Help Find the Right Answers, 33 Seton Hall L.

Rev. 987, 1019-22 (2003) (advocating for a more exacting standard that

maintains a hybrid element in which “some degree of deference to the decision

of the trial judge is in order” if “the admissibility decision actually focuses” on

narrower, case-specific questions).

55

Right Questions: Now Appellate Courts Should Help Find the Right Answers,

33 Seton Hall L. Rev. 987, 1021 (2003) (agreeing that appellate courts are

better situated for determining reliability because they generally have more

time, more judges assigned to individual cases, and more thorough briefing).

Professor Faigman further observes that, unlike other types of evidentiary

rulings, reliability does not turn on witness credibility: “Good scientific

research simply does not depend on the credibility of individual witness.” 48

Hastings L.J. at 978.

Our Adoption of a Hybrid Review Standard

As we have noted, the State and the prosecution-aligned amici have

argued to us that an abuse of discretion standard of review should govern

Daubert reliability rulings in New Jersey criminal and quasi-criminal cases,

whereas the Public Defender and the defense amici have urged that we adopt

de novo review of such reliability decisions.

Having duly considered those competing viewpoints, we unanimously

adopt a hybrid standard of review, akin to the approach endorsed by the Alaska

Supreme Court in Sharpe. Going forward, we hold that in New Jersey criminal

and quasi-criminal cases in which the trial court has admitted or excluded an

expert witness based upon Daubert reliability factors, our appellate courts shall

review that reliability determination de novo. However, other case-specific

56

determinations about the expert evidence -- such as whether the witness has

sufficient expertise, whether the evidence can assist the trier of fact in that

case, and whether the relevant theory or technique can properly be applied to

the facts in issue -- should be reviewed for an abuse of discretion.

We adopt the hybrid approach for several reasons. To begin with, it

continues the tradition of our case law in criminal matters -- most recently

expressed in J.L.G. -- to engage in more rigorous appellate review of the bona

fides of an expert’s methodology than under a deferential abuse of discretion

standard. The shift we announced in February from a Frye general acceptance

regime to a Daubert-based multi-factor regime in criminal and quasi-criminal

cases does not warrant a departure from that tradition. There is no reason to

weaken our appellate courts’ oversight of the gatekeeping functions of

criminal trial judges because of that shift.

In addition, the abundant reasons explained in Sharpe for adopting a

hybrid review standard in criminal and quasi-criminal contexts are persuasive.

The permissible methodologies of experts who are allowed to present their

opinions in criminal and quasi-criminal prosecutions should not vary from case

to case or from trial judge to trial judge.

Many categories of experts who testify frequently in criminal cases --

such as ballistics experts, fingerprint experts, DNA analysts, coroners,

57

serologists, toxicologists, accident reconstruction experts, cell tower experts,

and so on -- use the same methodologies repetitively. They are called upon by

prosecutors and defense counsel to testify with regularity. It would be

dysfunctional to have the admissibility of their opinions depend upon how

individual trial judges assess the reliability of their methodologies under the

Daubert factors, based on varying presentations by varied counsel, and require

appellate courts to defer to those varying and potentially conflicting rulings.

The stability and fairness of the criminal justice system would be undermined

by such uneven and unpredictable rulings. These concerns justify a more

stringent and less deferential appellate review of the trial court’s gatekeeping

decision.

Moreover, employing an abuse of discretion standard for reviewing

expert reliability determinations in criminal cases would consume time and

money, particularly the publicly funded budgets of prosecutors and public

defenders, who are the main litigators for such cases. With no assurance of

statewide consistency, the reliability of a particular kind of expert

methodology under Daubert could be relitigated over and over again in the

criminal trial courts. The massive scale of the present record compiled before

the Special Master through over forty days of hearings involving multiple

lawyers and witnesses illustrates the point. Absent materially new or different

58

evidence, there is no need, nor the realistic ability, to repeat such a colossal

undertaking in the courtrooms of individual trial judges confronted with DRE

evidence.

We appreciate the enormity of this record and the efforts by the Special

Master, the parties, and the many expert witnesses during the hearing to sift

through the documentary exhibits presented. We particularly note the

illuminating commentary and context provided at the hearing for the various

published studies. In future expert admissibility disputes applying the Daubert

factors, the parties -- preferably at the trial level -- should present all relevant

scientific and technical evidence and published studies. Such presentations

will enable appropriate witnesses to properly contextualize those materials,

and testify about their significance or insignificance, for the trial court’s and

ultimately the appellate court’s benefit.

We acknowledge that an appellate court’s de novo ruling about the

reliability of a certain kind of expert methodology should not be frozen in

time. If new scientific research emerges that calls into question the wisdom of

such precedent, then prosecutors and criminal defense lawyers should be free

to present that new research to the trial courts, with appropriate testimony, and

advocate for a change in the law. A hybrid review standard with a de novo

component need not perpetuate obsolete scientific principles.

59

For those reasons, we prospectively adopt for criminal and quasi-

criminal cases25 the hybrid review standard used in Alaska and similarly

followed in many other states. We now apply that standard to the Special

Master’s decision here concerning DREs.

V. De Novo Application of the Daubert Factors

Through the prism of de novo review, we proceed to apply the Daubert

reliability factors to the record developed before the Special Master. As we

noted in Olenowski I, the United States Supreme Court identified in Daubert a

list of four factors for assessing reliability of an expert’s methodol ogy under

Federal Rule of Evidence 702: 26

(1) whether the scientific theory or technique can be, or

has been, tested;

(2) whether it “has been subjected to peer review and

publication”;

(3) “the known or potential rate of error” as well as the

existence of standards governing the operation of the

particular scientific technique; and

25

Because the question is not before us, we do not address here whether a

similar hybrid standard should be adopted for civil cases or whether the abuse

of discretion standard we endorsed in Accutane should remain in force in the

civil arena.

26

New Jersey’s version of Rule 702, which was modeled after the federal rule

before it was amended, reads slightly differently. It states: “If scientific,

technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualifi ed as

an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise.” N.J.R.E. 702.

60

(4) general acceptance in the relevant scientific

community.

[Olenowski I, 253 N.J. at 147 (quoting Daubert, 509

U.S. at 593-94).]

The United States Supreme Court in Daubert made clear that the factors

it enumerated are non-exclusive and that the reliability inquiry is “flexible,”

signaling that other considerations may also be pertinent. See ibid. (quoting

Daubert, 509 U.S. at 594). As the Supreme Court advised, “[m]any factors

will bear on the inquiry, and we do not presume to set out a definitive checklist

or test.” Daubert, 509 U.S. at 593.

Likewise, our opinions in Accutane and in Olenowski I both cautioned

that the Daubert factors should not be applied rigidly. See Accutane, 234 N.J.

at 398-99 (describing Daubert’s list of factors as “a helpful -- but not

necessary or definitive guide”); Olenowski I, 253 N.J. at 147-49 (emphasizing

Daubert’s flexibility). We also made clear that the federal Daubert

jurisprudence should not be applied in lockstep fashion and that New Jersey

evidence principles ultimately govern admissibility in our state courts. See

Accutane, 234 N.J. at 399 (declining “to embrace the full body of Daubert case

law”); Olenowski I, 253 N.J. at 154 (adopting that principle for the application

of the Daubert standard in criminal cases).

61

For ease of discussion in this particular case, we reorganize the Supreme

Court’s listing of Daubert factors in a few ways. The sequence in which we

address the Daubert factors here does not reflect their relative importance; all

of them bear upon the analysis. 27 The “testability” factor, listed first by the

Court conceptually, frequently ties in closely with the “error rate” component

of the Court’s third factor, particularly in this case. Given that nexus, we shall

discuss testability and error rate together. The other component of the Court’s

27

Federal appellate case law applying Daubert has not rigidly followed the

sequence of factors listed in the Daubert opinion. In fact, the Supreme Court

itself has not adhered to that sequence in its two opinions applying Daubert. In

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157-58 (1999), the Court first

considered the lack of general acceptance of other experts in the field (factor

#4), followed by the absence of published articles or papers that validated the

expert’s approach (factor #2), and then it moved on to discuss other

deficiencies. In Joiner, 522 U.S. at 517-19, the Court first addressed the

published studies relied upon by the experts (factor #2), and explained why

that reliance was analytically unjustified, without specifically addressing the

other factors. The federal courts of appeals also at times have not adhered to a

1-2-3-4 sequence in discussing the factors, and have, in some instances,

analytically combined multiple factors. See, e.g., McKiver v. Murphy-Brown,

LLC, 980 F.3d 937, 959-60 (4th Cir. 2020) (discussing peer reviewed

publication (factor #2) and acceptability (factor #4) before mentioning

testability (factor #1)); Lawes v. CSA Architect & Engineer, LLP, 963 F.3d

72, 99-106 (1st Cir. 2020) (first and mainly analyzing published articles in the

expert’s field (factor #2), then referring to other factors); UGI Sunberry LLC

v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 834-35 (3d Cir.

2020) (first discussing peer review (factor #2), then general acceptance (factor

#4), then error rate and standards (factor #3), and then testability (factor #1)).

That said, we do not prescribe that our trial judges are to follow the sequence

we use in the present case, but emphasize that the pertinent factors should all

be covered within the analysis.

62

third listed factor -- the adequacy of standards -- thereby becomes a standalone

factor. Because the adequacy of standards logically affects many of the other

factors (indeed, a standardless methodology presumably would be unreliable),

we choose to address that subject in this case first. Following that, we will

proceed to a discussion of the publication/peer review factor, and then move

on to the others.

We therefore apply the Daubert factors to this particular record in the

following sequence: (A) adequacy of standards; (B) publication and peer

review; (C) testability and error rate; and (D) general acceptance. We then

conclude with an overall assessment.

A. Adequacy of Standards

The Supreme Court in Daubert underscored the importance of “the

existence and maintenance of standards controlling the [expert’s] technique’s

operation.” 509 U.S. at 594. The Court illuminated the need for experts to

adhere to reliable standards in Kumho Tire. 526 U.S. at 141. In that case, an

expert in “tire failure analysis” had developed his own multi-factor test for

determining whether a manufacturing or design flaw caused a tire failure. Id.

at 143-44. The expert posited that there were four tell-tale visual and tactile

signs that a tire failed due to misuse rather than a manufacturing or design

flaw. Id. at 144. When the expert found any combination of two or more of

63

those signs, he would conclude that misuse caused the failure; if one or none

was present, he would find a manufacturing or design defect. Ibid.

The trial court in Kumho Tire found that the expert’s methodology

satisfied none of Daubert’s prongs. Id. at 145. The Supreme Court agreed. Id.

at 158. Among other things, the Court noted that the expert’s four-factor test

was administered in an undisciplined, standardless fashion, and that no one

else in the field utilized his method. Id. at 154-57.28 Those observations

inform our analysis of the “adequacy of the standards” prong.

Here, in his second report, the Special Master recognized the “long

process of initiating and developing the DECP and DRE protocol until it

reached a level of standardization and developed into a program used in all

fifty states, all provinces of Canada, and a number of other countries.” SM

Report II at 38-39. In delineating the State’s arguments about the standards,

he agreed with them, finding significant “the rigorous training, certification

and recertification procedures” for DREs. Ibid. He further acknowledged the

DECP program’s continued use of the Technical Advisory Panel, which has

28

In a similar vein, our “net opinion” doctrine under New Jersey evidence law

weeds out experts who base their opinions on purely personal standards or

“rules of thumb.” See, e.g., State v. Burney, 255 N.J. 1, 23-24 (2023);

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372-74 (2011).

64

members from the relevant scientific fields, and the support of administrative

and regulatory authorities such as the NHTSA and the IACP. Ibid.

As the Special Master noted, those many factors, according to the State,

“assure that the [DECP] program is standardized [and] that it maintains a

continuing process, with the advice and input of relevant experts, to

continually be aware of new information that might affect the program.” Ibid.

Through those means, “evaluations by DREs will be performed in accordance

with a standardized procedure.” Ibid.

The Special Master concluded that the program “has established and

continually maintains a well-organized structure for the DECP that provides

careful and competent supervision and management and assures the reliable

implementation of the standardized DRE program generally, and particularly

in New Jersey.” Id. at 39. Hence, the Special Master “attribute[d] significant

weight to this component” of the Daubert analysis. Ibid.

Although the standards component was not a prominent focus of the

Public Defender’s briefing before the Special Master, the Public Defender did

levy various criticisms about the skills of the DREs and the operation of the

program. Among other things, the Public Defender argues that “[t]he DRE

protocol is not a checklist” because DREs making observations at each step of

the protocol are not compelled to make a particular finding, as, for example, a

65

psychiatric diagnosis would require. The Public Defender further submits that

“[f]or two defendants exhibiting the exact same clues, DREs could, without

violating any of the guidelines surrounding the protocol, conclude that one of

the defendants is impaired while the other is not.” Thus, the Public Defender

argues that the protocol has inadequate standards.

Applying de novo review, we agree with and adopt the Special Master’s

finding on the standards component. The twelve-step DRE process is

elaborate and standardized. It is grounded in a program that has been used

across the nation and abroad for decades and is periodically modified. The

program adheres to a standardized manual and uses a uniform seven-column

matrix card and other tools for each DRE’s evaluation. The more than 400

certified DREs in the State who are deployed to perform the evaluations have

been extensively trained, and are supervised and recertified. This is in stark

contrast to the expert in Kumho Tire, whose idiosyncratic methodology the

Supreme Court found lacking in reliable standards. See 526 U.S. at 154-57.

We acknowledge the concerns of the Public Defender and the defense

amici that DREs are neither physicians nor medical professionals. The DREs

have been trained, however, to ask drivers during the protocol about whether

they have medical conditions or about other causes that might impair them or

affect their performance on the field sobriety tests. The DREs take note of, but

66

do not opine about, any such medical information a driver may disclose. They

do not render a medical diagnosis. They are not medically trained to obtain a

fulsome medical history through follow-up questions. DREs are trained only

to be aware of the major non-drug causes of impairment that may mimic signs

of drug or alcohol impairment (e.g., head trauma, low blood sugar in diabetics,

seizures and neurological disorders, conjunctivitis, some mental health issues,

and “physical defects” like injuries that might affect performance of certain

steps of the protocol). If the driver needs immediate medical attention, the

DRE is trained to halt the examination and obtain medical assistance.

The State presented expert testimony, which the Special Master credited,

SM Report II at 21, attesting that it is generally accepted that persons such as

DREs who are not licensed medical professionals can be reliably trained to

conduct certain medically related tasks such as checking a driver’s pulse and

other vitals. At trial, the defense is free to cross-examine and impeach DREs

about their limited medical knowledge. In addition, where applicable, the

defense may present a medical expert witness to show that the defendant’s

behavior and condition have a benign medical explanation, such as the

prescribed use of medication or an underlying medical condition.

Additionally, we are unpersuaded by the Public Defender’s argument

that the protocol is unreliable because two DREs applying it to the same driver

67

can reach different opinions. Such potential differences of opinion do not

necessarily make a diagnostic standard unsound. In the field of medicine, for

example, two physicians applying the same diagnostic standards and relying

on the same clinical tests can legitimately disagree about a patient’s condition.

In fact, that is why patients often will seek a second doctor’s opinion before

proceeding with a course of treatment. There can be room for interpretation.

We are cognizant that the standards presently used to train and certify

DREs might be further enhanced. For example, the program’s certification

match criteria, which assign a “passing” score to a DRE when the DRE

accurately predicts only one out of two toxidrome categories present in a

driver, or only two out of three or more categories, arguably might be made

more stringent. And, as we noted earlier, the DREs should be obligated to

attempt to complete all of the steps of the protocol, unless it is infeasible to do

so. But such future enhancement of the training and certification standards is a

policy decision for the program administrators. As is, the standards are

adequate to reasonably support admissibility, with limitations. We further

note that the passing rate and other aspects of the DRE training and

certification standards are a fair subject of defense impeachment at trial.

On the whole, we concur with the Special Master that the State has

established ample standardization to meet this Daubert factor.

68

B. Peer Review and Publication

We next discuss the Daubert factor of “whether the theory or technique

has been subjected to peer review and publication.” 509 U.S. at 593. As the

Supreme Court noted, for scientific experts, “submission to the scrutiny of the

scientific community is a component of ‘good science,’ in part because it

increases the likelihood that substantive flaws in methodology will be

detected.” Ibid. However, the Court cautioned that publication “is not a sine

qua non of admissibility; it does not necessarily correlate with reliability, and

in some instances well-grounded but innovative theories will not have been

published.” Ibid. (citation omitted). Thus, “publication (or lack thereof) in a

peer reviewed journal” is “a relevant, though not dispositive, consideration in

assessing the scientific validity of a particular . . . methodology on which an

opinion is premised.” Id. at 594.

The Court in Kumho Tire observed that the Daubert factors “do not all

necessarily apply even in every instance in which the reliability of scientific

testimony is challenged,” noting that “[i]t might not be surprising in a

particular case . . . that a claim made by a scientific witness has never been the

subject of peer review.” 526 U.S. at 151. And case law has been mindful that

several non-scientific fields of expertise are not typically studied in peer

reviewed academic journals. See, e.g., Bitler, 400 F.3d at 1235 (admitting

69

expert testimony about the cause of an explosion under Daubert even though

the fire investigator’s experience-based methodology was “not susceptible to

testing or peer review”); United States v. Hankey, 203 F.3d 1160, 1169 (9th

Cir. 2000) (admitting under Daubert expert testimony on common gang

practices that was not peer reviewed).

The Special Master determined that “the results of the many studies

related to the DECP that have been undertaken since 1985 and that were

entered into evidence by the parties support the State’s position that the DRE

protocol has consistently been found to be a reliable method for detecting

impairment by drugs.” SM Report I 285-96. The Special Master repeated that

finding concerning the published studies in his second report. SM Report II

28-29. He found “most relevant and useful” two peer reviewed studies and

noted that several of the other studies in the record were peer reviewed. Id. at

26-28.

Those conclusions concerning the various studies were the product of

detailed and thoughtful analysis. Throughout sixty-five pages of his first

report, the Special Master extensively discussed (1) three early field sobriety

studies conducted by the Southern California Research Institute (SCRI) and

funded by the NHTSA between 1977 and 1986 addressing driver alcohol

70

abuse, which formed the basis of the SFSTs; 29 (2) three more field validation

studies funded by NHTSA between 1995 and 1998 concerning the accuracy of

the SFSTs;30 (3) three more studies from 2002, 2007, and 2011 examining the

relationship between the SFSTs and alcohol impairment, two of which were

peer reviewed, and two of which the NHTSA funded;31 (4) three studies from

2005, 2014, and 2020 evaluating a relationship between the SFST and drug-

induced impairment, two of which were peer reviewed;32 (5) three foundational

29

Marcelline Burns & Herbert Moskowitz, Psychophysical Tests for DWI

Arrests (1977); Van Tharp et al., Development and Field Test of Psychological

Tests for DWI Arrests (1981); Theodore E. Anderson et al., Field Evaluation

of a Behavioral Test Battery for DWI (1983).

30

Marcelline Burns & Theodore E. Anderson, Colo. Dep’t of Transp., A

Colorado Validation Study of the Standardized Field Sobriety Test (SFST)

Battery (1995); Marcelline Burns, Fla. Dep’t of Transp., A Florida Validation

Study of the Standardized Field Sobriety Test (SFST) Battery (1997);

Marcelline Burns & Jack Stuster, Validation of the Standardized Field Sobriety

Test Battery at BACs Below 0.10 Percent (1998).

31

James McKnight et al., Sobriety Tests for Low Blood Alcohol

Concentrations, Accident Analysis and Prevention, 34 Accident Analysis &

Prevention 305 (2002) (NHTSA-funded and peer reviewed); Marcelline Burns,

The Robustness of the Horizontal Gaze Nystagmus Test (2007) (NHTSA

funded); and Karl Citek et al., Sleep Deprivation Does Not Mimic Alcohol

Intoxication on Field Sobriety Testing, 56 J. Forensic Sci. 1170 (2011) (peer

reviewed). We note that Dr. Citek was one of the expert witnesses who

testified for the State before the Special Master.

32

K. Papafotiou et al., An Evaluation of the Sensitivity of the Standardized

Field Sobriety tests (SFSTs) to Detect Impairment Due to Marijuana

Intoxication, 180 Psychopharmacology 107 (2005) (peer reviewed); Amy J.

71

studies from 1985, 1986, and 1994 relating to the DECP protocol referenced in

the DRE training manual, each of which were government-sponsored; 33 (6)

eight other field and retrospective studies conducted in the United States and

Canada examining the reliability of the protocol, some of which were peer

reviewed and some of which were government-sponsored; 34 and (7) three

Porath & Douglas Beirness, An Examination of the Validity of the

Standardized Field Sobriety Test in Detecting Drug Impairment Using Data

from the Drug Evaluation and Classification Program, 15 Traffic Injury

Prevention 125 (2014) (peer reviewed); Dary Fiorentino et al., The Usefulness

of SFSTs in Detecting Drugs Other than Alcohol (2020) (not peer reviewed).

Dr. Fiorentino was a witness for the State at the Special Master hearings.

33

These include the Bigelow study and the Compton study, cited above, see

supra n.12, and relied upon by the LAPD in the expansion of the DECP. See

also Eugene V. Adler & Marcelline Burns, Ariz. Dep’t of Pub. Safety, Drug

Recognition Expert (DRE) Validation Study (1994).

34

These include the 1993 Hardin study (government sponsored), the 2009

Beirness/Canada study (peer reviewed), and the 2021 Vaillancourt study (peer

reviewed), cited above, see supra, n.17, and relied on by the Special Master as

the three most useful studies. These will be discussed in detail below. See

also D.F. Preusser et al., Evaluation of the Impact of the Drug Evaluation and

Classification Program on Enforcement and Adjudication (1992) (funded by

the NHTSA); Amy J. Porath et al., Toward a More Parsimonious Approach to

Drug Recognition Expert Evaluations, 10 Traffic Injury Prevention 513 (2009)

(peer reviewed); Amy J. Porath & Douglass Beirness, Simplifying the Process

for Identifying Drug Combinations by Drug, 11 Traffic Injury Prevention 453

(2010) (peer reviewed); Amy J. Porath & Douglass Beirness, Predicting

Categories of Drugs Used by Suspected Drug-Impaired Drivers Using the Drug

Evaluation and Classification Program Tests, 20 Traffic Injury Prevention 255

(2019) (peer reviewed); Rebecca L. Hartman et al., Drug Recognition Expert

(DRE) Examination Characteristics of Cannabis Impairment, 92 Accident

Analysis & Prevention 219 (2016) (peer reviewed).

72

laboratory studies from 1996 and 1998 concerning the protocol, all of which

were peer reviewed and two of which were government-sponsored.35 SM

Report I at 222-286.

We need not elaborate in this opinion on the details of those twenty-six

studies, which the Special Master aptly described at length. We note that the

Special Master particularly found significant the Hardin, Beirness/Canada, and

Vaillancourt field studies, two of which were peer reviewed, “because they

actually assessed the overall reliability of DREs evaluating subjects in the

field.” Id. at 272. That helps to ensure a higher degree of correlation between

peer review publication and reliability. See Daubert, 509 U.S. at 593 (noting

peer review “does not necessarily correlate with reliability”).

The 1993 Hardin study, which was conducted in Minnesota and was

government-sponsored, examined 71 field cases in which a DRE opined that a

subject was under the influence of a drug and for which a urine sample was

provided. SM Report I at 260. The Hardin study authors found an overall

35

Stephen J. Heishman et al., Laboratory Validation Study of Drug Evaluation

and Classification Program: Ethanol, Cocaine, and Marijuana, 20 J. Analytical

Toxicology 468 (1996) (peer reviewed and NHTSA funded); Stephen J.

Heishman et al., Laboratory Validation Study of Drug Evaluation and

Classification Program: Alprazolam, d-Amphetamine, Codeine, and

Marijuana, 22 J. Analytical Toxicology 503 (1998) (peer reviewed and

NHTSA funded); David Shinar & Edna Schechtman, Drug Identification

Performance on the Basis of Observable Signs and Symptoms, 37 Accident

Analysis & Prevention 843 (2005) (peer reviewed only).

73

“corroboration rate” of 84.5%, applying impairment match criteria. 36 Ibid. It

concluded “[t]he DRE protocol, if followed properly, appears to be a useful

screening tool for predicting whether a subject is under the influence of

drugs.” Ibid. (alteration in original) (quoting Hardin et al., Minnesota

Corroboration Study 2). The Special Master found it was “the least helpful” of

the three studies because of its small sample size. Id. at 272.

The 2009 Beirness/Canada study, which was published in a Canadian

forensic science journal, analyzed 1,349 evaluations performed by DREs in

Canada. Id. at 261. That study determined that in 92.1% of cases, the DRE’s

opinion matched the drug class identified by a toxicological analysis. Ibid. In

only nine cases did the DRE indicate a drug to be present and no drug was

found. Ibid. The authors concluded that overall the drug evaluations

conducted by the DREs were over 95% accurate, 37 which “provides confidence

in the use of the DEC procedure to detect persons impaired by substances other

36

The impairment match criteria, in contrast to the certification match criteria

described above, require only that the DRE opine the presence of any

impairing drug and that the toxicological analysis confirm the presence of any

impairing drug. SM Report I at 142. Drug categories are irrelevant to the

impairment match standard. Although the certification match standard is used

for DRE certification, the impairment match standard is used in some studies

evaluating DRE performance. Ibid.

37

For reasons we explain in Part V.3, accuracy rates may be difficult to

calculate reliably.

74

than alcohol.” Id. at 262 (quoting Beirness et al., 42 Can. Soc. Forensic Sci. J.

at 79).

The Vaillancourt study published in 2021 was a retrospective study of

2,982 DECP cases in Quebec between 2014 and 2018. Id. at 269. The study

encompassed all alleged drugged drivers arrested with signs of impairment

following a DECP investigation in which a toxicological sample was available.

Ibid. The study revealed that at least one drug with impairing potential was

found in 98% of the cases, with at least one drug matching the DRE’s

identified categories in 89% of the cases. Id. at 270. In only 9% of the cases,

the DRE opined a drug category and the toxicology did not corroborate any

drug in that category. Ibid.

That said, the Special Master correctly recognized limitations with those

studies, which we likewise recognize. Most significantly, the studies assessed

populations with an extremely high prevalence of drug-positivity and a low

prevalence of drug-negativity. Id. at 272-73. As we will discuss in the next

section, such an inherently skewed composition of samples means that a

reliable error rate, particularly a false positive rate, might not be ascertained.

Additionally, toxicology in those studies was typically not performed in cases

in which the DRE opined no impairment by the driver. Id. at 273. Hence,

75

“whether those cases are true negatives or false negatives remains

undetermined.” Ibid.

Further, the Special Master found that the lab studies relied upon by the

Public Defender indicating lower accuracy rates (both Heishman studies and

Shinar’s re-analysis of the same data) had “only marginal usefulness to this

proceeding” and that the field studies were more “meaningful.” Id. at 282,

285. In particular, he noted the State’s experts testified that the conditions of

the Heishman studies could have misled the DREs. Id. at 283-85. In

particular, the researchers possibly used lower dosing levels than seen in the

field, and they also allowed the test subjects to practice and improve upon their

performance of the psychomotor tests. Ibid.38

Despite their recognized limitations, we hold that the two dozen studies

presented in the record and considered by the Special Master are sufficient to

meet the Daubert factor of publication and peer review. The Special Master

appropriately considered not only the existence of those studies but also their

substantive content and conclusions. Many of the studies appeared in peer

38

The Nebraska Supreme Court has also critiqued these studies, observing

that, because the DREs did not question subjects about recent drug use and did

not examine evidence that would be found at an arrest, the study

inappropriately “examined an abbreviated evaluation that is different from the

standardized protocol that is actually used.” State v. Daly, 775 N.W.2d 47, 59-

60 (Neb. 2009).

76

reviewed publications, enabling other researchers to comment on the findings

and to undertake their own studies.

Although some of the studies were sponsored by government agencies

such as the NHTSA and not peer reviewed by academics, that does not

undermine those studies’ relevance or evidential weight. See Contini v. Bd. of

Educ. of Newark, 286 N.J. Super. 106, 124-25 (App. Div. 1995) (finding

statistical reports on school performance compiled by the State Board of

Education to be reliable and admissible). Indeed, our evidence rules recognize

that statistical findings in government reports presumptively have sufficient

reliability to qualify for admission under the hearsay exception for public

records, N.J.R.E. 803(c)(8). See Biunno, Weissbard & Zegas, Current N.J.

Rules of Evidence, cmt. 1 on N.J.R.E. 803(c)(8) (2023-2024) (noting “the

special trustworthiness of official written statements”).

To be sure, there has not yet been a published study that specifically

examines the New Jersey DRE program. Instead, experts in the present case

endeavored to analyze the “retrospective data” collected between 2017 and

2018. We discuss that data analysis in the following section.

77

C. Testability and Error Rate

Testability and error rate present more difficult issues in this case. Our

extensive discussion of them follows, aided by the context we have already

presented concerning standards and publication.

The United States Supreme Court stated in Daubert that “[o]rdinarily, a

key question to be answered in determining whether a theory or technique is

scientific knowledge that will assist the trier of fact will be whether it can be

(and has been) tested.” 509 U.S. at 593. The Court repeated the qualifyin g

term “ordinarily” in announcing the Daubert factor of error rate, stating that

“in the case of a particular scientific technique, the court ordinarily should

consider the known or potential rate of error.” Id. at 594. The term

“ordinarily” conveys that a judge’s findings of testability and reasonably low

error rates from test results are expected -- but not always required -- elements

of a proponent’s reliability showing.

Testability, sometimes called “falsifiability” or “refutability,” is meant

to help “separat[e] science from metaphysics” and thus the knowable and

factual from the unknowable and speculative. D.H. Kaye, On “Falsification”

and “Falsifiability”: The First Daubert Factor and the Philosophy of Science ,

45 Jurimetrics J. 473, 476 (2005). Admissible evidence must consist of

“knowable fact[s]” relevant to the determination of the question before the

78

trier of fact. 1 Wigmore on Evidence § 1 (Tillers rev. 1983). If an expert’s

testimony conveys only a “conclusion” or an “assumption,” Volk v.

DeMeerleer, 386 P.3d 254, 277 (Wash. 2016), or if it is mere “speculation or

conjecture,” Townsend v. Pierre, 221 N.J. 36, 55 (2015) (quoting Davidson v.

Slater, 189 N.J. 166, 185 (2007)), it is not factual and not helpful to the trier of

fact.

The difference between fact and speculation, however, is often unclear.

That is particularly so in the domain of what are considered “soft” sciences

such as social sciences, as opposed to “hard” sciences such as physical

sciences. Case law applying Daubert in other jurisdictions has generally been

less demanding concerning testability and error rates for experts in soft

sciences. See, e.g., Commonwealth v. Hinds, 166 N.E.3d 441, 453-56 (Mass.

2021) (sociology); Morris v. State, 361 S.W.3d 649, 654 (Tex. Crim. App.

2011) (child psychology). The DRE program is a mix of both soft social

sciences, such as psychology and human behavior, and hard sciences, such as

toxicology.

As the Special Master recognized, there are inherent practical limitations

within the DRE program that complicate efforts to test the program results

empirically and to obtain meaningful error rates. See SM Report I at 216-17,

79

(noting constitutional, ethical, and practical constraints); SM Report II at 25-

27 (same). Those practical limitations have numerous dimensions.

First, as we have already noted, the sample of drivers who are stopped

for suspected DWI or DUID because of observed “erratic and dangerous

driving” do not represent the general population. See Bealor, 187 N.J. at 590.

The sample is heavily skewed towards persons who are likely to be impaired

because of their usage of alcohol, drugs, or both. As the Special Master

correctly recognized, our constitutions and laws do not allow DRE researchers

to stop every driver and infringe on their liberty to perform the DRE protocol

without probable cause to arrest the person for driving under the influence of

drugs. SM Report I at 272; SM Report II at 27; see also Delaware v. Prouse,

440 U.S. 648, 663 (1979); State v. Williams, 254 N.J. 8, 44-45 (2023).

Second, laboratory simulations cannot replicate all twelve steps of the

DRE protocol. Key portions of the protocol (particularly Steps 2 , 3, and 10)

ask whether the subject made admissions of drug use to the arresting officer or

DRE. Such admissions could not be made in a “double blind” study in which

the test subjects would be unaware of whether they had ingested an actual

impairment-causing drug or a placebo. Further, a DRE’s observations of an

injection site for signs of drug use cannot be simulated.

80

Third, as the Special Master rightly noted, there are ethical and legal

constraints, as well as medical risks, in subjecting humans to high doses of

mind-altering drugs. That is especially true of new pharmacological

substances (NPS) and polydrug combinations, about which there is little

scientific knowledge and which might even be harmful or lethal to the test

subject.

Fourth, as the record also shows, toxicology has several limitations. The

experts and the parties agree that toxicology alone can only reveal the presence

of a drug in a person’s body. It does not measure the actual effect of a

substance on the test subject, much less impairment beyond a legally

cognizable threshold.

Fifth, toxicology uses drug-specific cutoff levels to detect the presence

of substances in the extracted urine or blood samples. As several of the

experts noted, some drugs and combinations of drugs may be impairing but

below the cutoff levels.

Sixth, the concentration of drugs in a body can dissipate over time. This

is especially of concern with respect to a blood sample. As the Special Master

noted, drivers have a legal right to refuse to consent to the extraction of a

blood sample from their bodies. Cf. Schmerber v. California, 384 U.S. 757,

767-70 (1966). If a driver invokes that right and refuses to consent to a blood

81

draw, the police must obtain a warrant from a judge or the warrantless blood

draw must be justified by exigent circumstances. See id. at 770-71; Missouri

v. McNeely, 569 U.S. 141, 164-65 (2013); see also State v. Zalcberg, 232 N.J.

335, 351-52 (2018). During the time expended in obtaining a warrant --

assuming there is probable cause to support one -- the drug levels in the

driver’s blood may diminish before a blood sample is collected.

Seventh, urine samples, although easier to obtain from a driver, are less

informative than blood toxicology because urine metabolites may remain in a

person’s body for days or weeks. Hence, a positive toxicology result derived

from a urine sample does not signify that the test subject was impaired at the

time of driving or had recently ingested the drug(s).

Those and other inherent constraints make the DRE program less

“testable” and the error rate less “knowable” than the ideal. With that in mind,

we proceed to discuss the New Jersey retrospective data in the record, and the

opinions presented about that data in the testimony of the statisticians and the

other experts.

As we noted above, the New Jersey retrospective data collected from the

DRE program in 2017 and 2018 encompassed 5,855 DRE reports. Of that

total, 2,551 were non-training cases that included a toxicology report for

corroboration of the DRE conclusion. In about 27% of the 5,855 cases, there

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was no toxicology report obtained. That can occur because the driver refused

to provide a urine sample; because the DRE concluded that the driver was not

impaired by drugs and so did not request a urine sample; or for some other

reason.

Sensitivity, Specificity, and Accuracy

The experts who testified before the Special Master discussed this data

by using several core concepts within the field of statistics, chiefly

“sensitivity,” “specificity,” and “accuracy.”

Sensitivity refers to the detection of true positives. In this context, it

calculates the percentage of times a DRE correctly opined the presence of

specific drug categories (under the certification match criteria described

above) out of the total number of instances where the drivers had drugs in their

systems. SM Report I at 188. Mathematically, that entails dividing the

number of true positives by the sum of true positives and false negatives. 39

Ibid.

Specificity refers to the detection of true negatives. In this context, it

means how often the DRE will opine that persons have no drugs in their

system, if they indeed have no drugs in their systems. Id. at 188-89. The

39

Sensitivity = True Positives/(True Positives + False Negatives)

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specificity is calculated by dividing the number of true negatives by the sum of

true negatives and false positives. 40 Ibid. The false positive rate shows in this

case how often DREs opine that drivers have a drug or drugs in their system

when, according to a toxicology report, they do not. It can be calculated by

dividing the number of false positives by the sum of false positives and true

negatives,41 or by subtracting the specificity rate from 100%.

Accuracy “summarizes the ability of the test being able to truly

discriminate between true positives and true negatives.” Id. at 189. It

considers when the subject condition is present and when it is not. Ibid. One

of the State’s statistical experts, Dr. Brian D. Martin, testified that it is “the

most commonly valued statistic associated with a test.” Ibid. As expressed in

a mathematical formula, it means taking the sum of true negatives and true

positives and dividing that figure by the sum of all four potential outcomes --

true positive, false positive, true negative, and false negative. 42 Ibid.

The high sensitivity rate in the New Jersey data, ranging from 82.5% to

92.6%, is an important, albeit not dispositive, starting indicator of reliability.

40

Specificity = True Negatives/(False Positives + True Negatives)

41

False Positive Rate = False Positives/(False Positives + True Negatives)

42

Accuracy = (True Negatives + True Positives)/(True Positives + False

Positives + True Negatives + False Negatives)

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Based on the available data, it appears that when a DRE yields a positive

result, indicating that a person is displaying signs consistent with a specific

category of drug, the result is very often correct as corroborated by toxicology.

There were relatively few “false negative” instances in which the DRE

examination failed to detect the presence of at least one out of two (or two out

of three or more) drug categories detected by toxicology. Had the sensitivity

rate been low, it would cast doubt on the protocol’s reliability.

Notably, one of the State’s key witnesses, Dr. Enrique Schisterman, who

chairs the University of Pennsylvania Medical School’s Department of

Epidemiology, testified that the sensitivity rate within the New Jersey data was

“quite robust.” Dr. Schisterman noted that he was “confident” in sensitivity as

an estimator for this data, in part because the DRE test was designed to be

utilized in evaluating suspected intoxicated drivers, not the general driving

population. As the Special Master summarized it, “DREs are excellent at

identifying true positive cases.” Id. at 215.

The Public Defender essentially contends the DRE methodology is

worthless because a high sensitivity rate would also be attained by assuming

that all drivers who are subjected to the protocol are drug impaired. That

argument overlooks the DRE’s informative role in narrowing down the

possible sources of drug use within the matrix’s seven categories of

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toxidromes. After completing the protocol, the DRE designates which of the

seven categories, if any, match the driver’s presentation. The methodology is

a nuanced multi-step protocol, not a crude “guess them all” exercise.

Calculation of the specificity rate, however, presents substantial

obstacles. As we have already noted, there are many practical reasons -- such

as delays in obtaining a warrant; time otherwise consumed in getting a sample

without a warrant; lab testing cutoffs; the non-testability of NPS substances

and polydrug combinations; the differences between blood and urine analysis;

and so on -- that can explain why a driver might have actually been impaired at

the time of the DRE’s assessment despite a negative toxicology report. Thus,

one cannot assume that the instances in which the DRE made a positive

finding that was not corroborated by a later toxicology exam are necessarily

“false” positives.

Regardless of the actual composition of the toxicology instances, we

accept Dr. Schisterman’s assessment that the retrospective New Jersey data is

inadequate to enable a fair calculation of actual false positives and specificity.

We therefore decline to adopt the argument of the Public Defender that the

false positive rate must be 78% because in 105 total instances where a

toxicology report revealed no drugs in the driver’s system, a DRE nonetheless

opined that the subject was impaired by drugs in 82 of them. Nor, however, do

86

we adopt the 3% error rate the State ascribed to false positives; that rate was

incorrectly calculated by using all cases, rather than all negative cases, as the

denominator in the formula.

As the Special Master found, that data shows a high accuracy rate of

between 91% and 95%. Such a high rate is to be expected because the sample

of persons subjected to the DRE protocol are drivers suspected of being

impaired and who were, in most instances, observed by an officer to have

driven their vehicles erratically and did not have a BAC at or above the legal

limit. But because accuracy is a function of sensitivity and specificity, it

cannot be reliably calculated from the retrospective dataset, as Dr. Schisterman

acknowledged in his testimony. The same dataset constraints exist in the other

published retrospective studies.

In sum, the testability and false-positive error rate aspects of the Daubert

analysis are largely inconclusive, due to variables that are neither controllable

nor known, and thus must be understood in the context of the datasets from

which they were calculated. The field studies that support reliability for the

DRE are limited in authoritativeness by the skewed sample of motorists

subjected to the DRE protocol. On the other hand, the double-blind studies

that question the reliability of parts of the DRE protocol give the methodology

short shrift because of the inherent ethical and study-design limitations.

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We reject our dissenting colleagues’ assertion that testability and error

rates are categorically the most important Daubert factors. Post at ___ (slip

op. at 9, 16-17). Case law does not support according those factors such pre-

eminent or dispositive status. Despite the important role testability often may

play in assessing reliability, “testability is not a prerequisite to admission.”

Seifert v. Balink, 888 N.W.2d 816, 841 (Wis. 2017) (allowing expert medical

testimony on the standard of reasonable care for obstetricians based on the

expert’s untestable personal experiences). “While the testability and error

rates of a scientific theory are factors a trial court may consider in assessing

reliability, the trial court may give these factors less weight or disregard them

altogether if the case so requires.” Estate of Ford v. Eicher, 250 P.3d 262, 269

(Colo. 2011) (en banc) (finding and recognizing that “ethics prevent testing the

[expert’s] intrauterine contraction theory”).

“In certain fields, experience is the predominant, if not sole, basis for a

great deal of reliable expert testimony.” Seifert, 888 N.W.2d at 841 (quoting

Fed. R. Evid. 702, Advisory Comm. Note (2000)). The inability to calculate a

methodology’s error rate with precision can be a realistic constraint in

situations where, as here, the testing would involve human subjects. See, e.g.,

John’s Heating Serv. v. Lamb, 46 P.3d 1024, 1035-36 (Alaska 2002)

(upholding the admissibility of toxicology experts who evaluated the leakage

88

of carbon monoxide into homes causing neurological illnesses, noting that

“testing on humans [to determine dangerousness levels] simply cannot be

ethically undertaken”); United States v. Pollard, 128 F. Supp. 2d 1104, 1120,

1123 (E.D. Tenn. 2001) (finding reliable a doctor’s estimation of the age of a

child within an illicit video, despite reliance on a scientific scale with

questionable error rates because the scale was one of several factors relied

upon, including the expert’s over twenty years of professional experience as a

pediatrician).

The absence of a definitive rate of error in the present case should not be

a dispositive basis to exclude all DRE testimony. In essence, the defense is

demanding that the State prove a “null hypothesis” that the DRE protocol will

not produce an intolerable percentage of false positives. But, as the Appellate

Division recognized in Carl v. Johnson & Johnson, “no set of statistical results

is capable of establishing that [a] null hypothesis is actually true or false.” 464

N.J. Super. 446, 456 (App. Div. 2020). That is why “absolute scientific

certainty is not the standard for the admissibility of expert testimony.” Paolino

v. Ferreira, 153 A.3d 505, 523 (R.I. 2017) (quoting State v. Abdullah, 967

A.2d 469, 478 (R.I. 2009)).

If, as the Public Defender and the defense amici argue, testing to

validate the DRE protocol must be more robust, expanded testing would entail

89

stopping and administering the DRE protocol to a large sample of drivers who

had only committed a motor vehicle violation, thereby detaining people in

violation of their liberties and constitutional rights. The appellants and amici

surely would not favor such infringements in a quest to accumulate more

reliable data about DRE error rates. In short, the inconclusiveness of the error

rate here should not categorically bar the admission of this useful evidentiary

source.

D. General Acceptance

We noted in Olenowski I that the previously dispositive Frye

admissibility standard, which hinged upon the “general acceptance” of an

expert’s methodology, has now been folded in as a single factor within the

multi-factor Daubert test. See 253 N.J. at 147 (citing Daubert, 509 U.S. at

593-94). As the Supreme Court instructed, “[a] ‘reliability assessment does

not require, although it does permit, explicit identification of a relevant

scientific community and an express determination of a particular degree of

acceptance within that community.’” Daubert, 509 U.S. at 594 (quoting

United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)). “Widespread

acceptance can be an important factor in ruling particular evidence admissible ,

and ‘a known technique which has been able to attract only minimal support

90

within the community’ may properly be viewed with skepticism.” Ibid.

(quoting Downing, 753 F.2d at 1238).

As the Special Master correctly found, the record here amply establishes

such “[w]idespread acceptance” and support of the DRE protocol. See ibid.

At the end of his comprehensive initial report applying the Frye standard, the

Special Master wrote:

I conclude for all of the reasons stated in this report that

DRE testimony is reliable. The reliability is established

by the expert testimony presented by the State, which

establishes that the DRE protocol replicates generally

accepted medical practices for identifying the presence

of impairing drugs and their likely identity through a

toxidrome recognition process. This testimony has also

established that the DRE matrix comports with matrices

designed for this purpose and generally accepted and

used in the medical field. This testimony has also

established that the training DREs receive is

comparable to that received by medical technicians and

that DREs are thus enabled to reliably apply the

protocol. Therefore, by implication, the DRE protocol

as a whole and its individual components are generally

accepted in the scientific communities to which they

belong, namely medicine and toxicology.

As with all evidence, and as I have stated repeatedly

regarding each individual step, DRE evidence and the

DRE opinion will be tested by cross-examination and

the factfinder will ascribe to it such credibility

assessments and weight allocations as he or she deems

appropriate.

[SM Report I at 331 (emphases added).]

91

Upon our de novo review of the record, we concur with the Special

Master’s conclusions, subject to caveats we will detail in the next portion of

this opinion.43

For many years, the DRE protocol has been widely and regularly used

across this country and abroad. No state has discontinued it, and no state’s

highest court has nullified it. The protocol has been studied multiple times and

periodically revised and enhanced. When DRE evidence is presented in courts

far and wide, defense attorneys have had repeated opportunities to impeach it

on cross-examination and to counter it with competing expert opinion that may

be critical of the methodology. Although it has imperfections, the protocol has

stood the test of time in its widespread acceptance.

Our case law has instructed that there need not be complete agreement

within the scientific community to satisfy the general acceptance test.

“[P]ractically every new scientific discovery has its detractors and unbelievers,

but neither unanimity of opinion nor universal infallibility is required for

judicial acceptance of generally recognized matters.” Chun, 194 N.J. at 92

(quoting Johnson, 42 N.J. at 171). The test does not require the “exclusion of

the possibility of error.” Ibid. (quoting Harvey, 151 N.J. at 171).

43

The dissent acknowledges that the Daubert factor of general acceptance has

been demonstrated. Post at ___ (slip op. at 17-19).

92

The twelve expert witnesses who testified for the State in support of the

DRE protocol’s reliability were highly credentialed. They collectively

explained in depth why the protocol is reliable and widely used. And the

Public Defender, in arguing before us, did not rely on the testimony of the four

defense experts who expressed an opposing viewpoint. The record provides a

solid foundation for the Special Master’s conclusion of general acceptan ce.

Case law in other jurisdictions has generally upheld the admissibility

and reliability of the DRE protocol, which supports the protocol’s general

acceptance. See State v. Kelly, 97 N.J. 178, 210 (1984) (noting case law is

one indicator of general acceptance). The cases can be divided into three

groupings.

First, several courts have ruled that DRE evidence is admissible as

expert testimony based upon specialized, not scientific, knowledge. See State

v. Aleman, 194 P.3d 110, 112, 117 (N.M. Ct. App. 2008); Williams v. State,

710 So. 2d 24, 25, 28 (Fla. Dist. Ct. App. 1998); State v. Layman, 953 P.2d

782, 786 (Utah Ct. App. 1998); Mace v. State, 944 S.W.2d 830, 834 (Ark.

1997); United States v. Everett, 972 F. Supp. 1313, 1319-21 (D. Nev. 1997);

State v. Klawitter, 518 N.W.2d 577, 579, 584-85 (Minn. 1994).

Second, the Washington Supreme Court and the New York County

Court, Suffolk County, have held that DRE testimony is admissible under the

93

Frye standard. State v. Baity, 991 P.2d 1151, 1157-61 (Wash. 2000) (en banc);

People v. Quinn, 580 N.Y.S.2d 818, 826 (

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