Evan Levow Represents DUIDLA as Amicus in New Jersey Case Challenging Drug Recognition Experts in DWI Prosecutions

New Jersey’s driving while intoxicated (DWI) statute is not limited to alleged driving while under the influence of alcohol. The law only provides an actual metric for how much alcohol may be present in someone’s system before they are presumed to be legally impaired. For cases involving alleged impairment by other substances, New Jersey prosecutors often rely on drug recognition experts (DREs), law enforcement officers who have received training that purports to help them identify the effects of particular drugs on individuals. After a DWI defendant challenged the admissibility of DRE evidence, the New Jersey Supreme Court appointed a special master to assess each step in the procedure used by DREs. Evan Levow is representing the DUI Defense Lawyers Association (DUIDLA) in the case. A hearing began in early October 2021, in which the special master is hearing testimony regarding the scientific reliability of DREs. With New Jersey moving towards the legalization of recreational cannabis, the outcome of this case is likely to have a far-reaching impact.

In addition to alcohol, the DWI statute includes “narcotic[s], [and] hallucinogenic or habit-producing drug[s]” as substances that can cause impairment. A driver with blood alcohol content (BAC) of 0.08 percent or more is subject to a presumption of impairment. The statute does not specify actual amounts of any other substance. Instead, prosecutors must introduce eyewitness testimony about a defendant’s behavior to prove that they were too impaired to drive. DREs arose as a way for the state to meet its burden of proving impairment.

DREs receive training and certification based on the Drug Recognition and Classification Program (DEC), which is operated by the International Association of Chiefs of Police and the National Highway Transportation Safety Administration. The DEC protocol involves a twelve-step process that DREs use to evaluate individuals suspected of driving under the influence of drugs (DUID). The process begins with BAC testing, and includes field sobriety tests and various other examinations. Toxicology testing is the last step in the process.

The defendant in the case that is now before the special master was charged with and convicted of DWI twice in 2015. Police administered breath tests using an Alcotest, with results showing BAC 0.04 percent and 0.00 percent. Police nevertheless believed the defendant was under the influence of something, so they called in DREs to evaluate the defendant. Both times, the DREs concluded that he was under the influence of both stimulants and depressants.

The municipal court judge allowed the DRE testimony. Both the Law and Appellate Divisions rejected the defendant’s argument that the testimony was too scientifically unreliable to be admissible.

The hearing before the special master is meant to assess whether DRE evidence meets the Frye standard, named for a 1923 decision by the D.C. Circuit Court of Appeals. The New Jersey Supreme Court adopted the Frye standard in 1997. It states that new scientific technologies or methods are admissible as evidence if they have “general acceptance” in the scientific community.

If you are facing alleged DWI charges in a municipal court in New Jersey, DWI attorney Evan Levow can guide you through the court process and advocate for your rights. Please contact us today online or at (877) 593-1717 to schedule a free and confidential consultation.

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