Will evidence by cannabis ‘WIREs’ be admissible?

NJ State PBA Legal Corner 

By Robert A. Fagella, Esq. and Paul L. Kleinbaum, Esq. 

In the September issue of NJ Cops Magazine, we wrote about a decision issued by a Special Master which concluded that testimony by Drug Recognition Experts (DREs) was admissible expert testimony in determining intoxication. The Special Master was appointed by the New Jersey Supreme Court to determine whether testimony of DREs is admissible in court for purposes of determining intoxication when there is no additional evidence such as blood or urine testing to support an intoxication determination.

The Supreme Court, in State v. Olenowski, recently sent this decision back to the Special Master for reconsideration under a different standard. This decision is significant not only because of its effect on DWI cases and similar criminal matters, but also because it could impact whether impairment evidence provided by Workplace Impairment Recognition Experts (WIREs) under the Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA), the recreational cannabis law, will be admissible in “reasonable suspicion” drug testing.

By way of background, the defendant in the Olenowski case was alleged to have been driving under the influence of a central nervous system depressant and stimulant. The prosecutor used DRE testimony to prove that the defendant was under the influence. The defendant was convicted in municipal court, and, on appeal, the admissibility of the DRE evidence was upheld, and the conviction affirmed.

The evaluation of the DRE evidence was conducted using what has been referred to as the Frye standard based on a decision by a federal court. Under the Frye standard, judges are to consider only whether the subject of the testimony has been “generally accepted” in the relevant scientific community. This was the analysis used by the courts in evaluating the 12-step protocol used by DREs to determine whether a person is impaired and whether the impairment was likely caused by ingesting one or more drugs.

After the case was originally appealed to the Supreme Court, the court concluded in 2019 that the factual record was inadequate to assess the validity of the DRE evidence. The court appointed a Special Master, a retired appellate division judge, to conduct a hearing and decide whether DRE evidence had achieved general acceptance within the relevant scientific community. And therefore, it satisfied the reliability standard in the rules of evidence.

The Special Master conducted an extensive hearing with testimony from 16 witnesses over 42 days with hundreds of exhibits presented in evidence. He concluded that the scientific expertise underlying the DRE evidence was admissible because it had long been established and generally accepted. After the Special Master’s decision was submitted to the Supreme Court for review, the court requested that the parties, including numerous amici, submit arguments on whether the Frye standard was appropriate and whether the court should instead adopt the principles of what is referred to as the Daubert standard in criminal cases.

The Daubert standard empowers the courts to examine the reliability of expert evidence under a broader range of relevant information, not just whether it has been generally accepted. Under Daubert, courts consider a non-exclusive list of four factors to determine the reliability of this expert testimony. Those factors are (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 of the scientific technique; and (4) general acceptance in the relevant scientific community.

Because the Frye standard had been criticized as both unduly restrictive and unduly permissive, the court concluded that Daubert provided a more flexible standard, and a superior method to assess admissibility in both civil and criminal cases. The court directed trial courts in the future to examine a wide variety of expert evidence by considering all relevant factors, not just by general acceptance. The court also emphasized that its decision applied not only to testimony based upon scientific knowledge, but also to testimony based upon technical or other specialized knowledge. As a result of its decision, the court sent the case back to the Special Master to assess the reliability and admissibility of DRE evidence under the Daubert standard.

This case will have a significant impact on impairment decisions made under CREAMMA. Under CREAMMA, law enforcement agencies are required to utilize WIREs to make impairment decisions. Unfortunately, agencies have not been able to employ WIREs because the Cannabis Regulatory Commission (CRC) has not yet adopted standards for the training and certification of WIREs. Until that time, the CRC has given law enforcement agencies the authority to utilize staff members or third-party contractors who are trained to recognize impairment, although the CRC has not yet specified what type of training should be implemented.

Undoubtedly, any expert testimony offered by WIREs, or by staff members or third-party contractors, on the issue of “reasonable suspicion” of workplace impairment will be challenged under the standards adopted by the Supreme Court in Olenowski. The challenge will be based on whether the expert testimony offered by WIRES, or others, is admissible under the Daubert standards. Because the CRC has not adopted training and certification requirements for WIREs or, in the absence of WIREs, for agency staff members or third-party contactors, it is difficult, if not impossible, to assess whether this evidence will be admissible. We will continue to keep the NJ State PBA and its members apprised of any developments.