Testimony Of Drug Recognition Expert Deemed Reliable Against Impaired Drivers, Decides NJ Supreme Courts

New Jersey’s Supreme Court recently confirmed that the testimony of drug recognition expert is reliable enough to be used as evidence in court against impaired drivers.

Drug recognition experts (DRE) are trained to determine if drivers are impaired by substances that can’t be detected by roadside tests. While the Supreme Court confirmed these testimonies to be reliable enough, their use has been restricted, reported the New Jersey Monitor.

“The New Jersey experience in thousands of cases over a two-year period reveals that utilizing the DRE protocol, New Jersey's DREs have performed very well in identifying drivers who are unable to drive a motor vehicle safely because of the presence in their system of impairing drugs,” wrote Judge Joseph Lisa in an Opinion report.

Judge Lisa also highlighted the twelve-step protocol used by DREs: 1) Breath alcohol test; 2) Interview of arresting officer; 3)Preliminary examination and first pulse; 4)Eye examinations; 5)Divided attention tests; 6)Vital signs and second pulse; 7)Dark room exam of pupil size; ingestion site exam (oral and nasal); 8)Check for muscle tone; 9)Check for injection sites and third pulse; 10)Interrogation, statements, and other observations; 11)Opinion of evaluator and 12)Toxicological examination.

Under the ruling, DREs are not allowed to say that a driver was impaired because they took a specific substance, only that their impairment is “consistent with” the effects of certain substances. The court ordered the DRE testimony be excluded if authorities did not attempt to do toxicology tests and if a person refused to provide a sample for such a test, courts are to admit the testimony.

Attorney General Matt Platkin praised the decision, saying “We are grateful for this morning’s New Jersey Supreme Court decision recognizing that our trained Drug Recognition Experts have reliable insights that courts can hear in drug-impaired-driving cases. Every New Jerseyan deserves to be able to get where they are going safely, and today’s ruling will help us hold impaired drivers accountable when they endanger pedestrians, cyclists, and their fellow motorists.”

Superior Court Judge Jack Sabatino wrote the majority opinion is not the last word on the matter. “We presume that researchers will continue to study the efficacy of the DRE methodology, and we do not foreclose future litigation with appropriate testimony to re-examine it.”  He added that testimony on its own, does not determine a defendant’s guilt.

New Jersey Chief Justice Stuart Rabner and Justice Fabiana Pierre-Louis disagreed with the decision, arguing that reliability was not determined.

“The majority opinion discounts legitimate concerns about the reliability and accuracy of the DRE protocol and upholds the admission of DRE evidence despite acknowledging that ‘the factors of testability and false positive error rate are largely inconclusive’ and that ‘DRE testimony does not, in and of itself, establish impairment,” Pierre-Louis wrote.

She added drug recognition experts claimed 78% of individuals were impaired, after which their toxicology reports showed no presence of drugs.

Gov. Murphy Is Open To Allowing Cannabis Home Grow

Meanwhile, New Jersey Governor Phil Murphy (D) confirmed he is willing to consider decriminalizing marijuana cultivation at home.

“I’m very much open-minded to this. I would bet—if I were a betting man—that down the road that that’s exactly where this would land. I understand, having said that, why wasn’t in our initial regs, because I think there’s a rightful objective to get this industry up on its feet and make sure that the folks who are in this as a matter of commerce are successful and, again, with a huge amount of focus on equity,” he said in an interview with News 12 earlier this week.

“Social justice is how I got here to begin with, to support it. What we’ve done, by the way, has gone really well. We just haven’t done enough. We’ve just got to do more—get this more proliferated,” the governor added. “But I think once the industry is up on its feet, and it is getting there…I think at some point [home grow is] a consideration we’ll get back on the table.”

Photo: Courtesy of Wesley Tingey on Unsplash