New Jersey Supreme Court to Consider Scientific Validity of Drug Recognition Experts in DWI Cases

New Jersey defines driving while intoxicated (DWI) in both general and specific terms. The most straightforward way for the state to prove that a defendant was too impaired to drive is to show that the defendant’s blood alcohol content (BAC) was at or above a certain level. This creates a presumption of impairment. Alcohol is not the only substance, however, that can cause impairment. While police can test samples of blood or urine for other substances, state law does not identify a specific “legal limit” of any substance besides alcohol. Police in New Jersey regularly use officers known as drug recognition experts (DREs) to testify about indications of impairment in a defendant’s appearance or behavior. Advocates for DWI defendants in New Jersey have challenged DRE testimony’s scientific reliability. The New Jersey Supreme Court is preparing to hear a DWI case that involves a direct conflict between BAC evidence and DRE testimony.

The DWI statute identifies two scenarios in which a driver commits an offense. One involves driving with a BAC of 0.08 percent or more. The other involves driving “while under the influence of” alcohol or other substances. Perhaps because DWI based on BAC is generally easier to prove, state DWI law focuses on breath testing. Drivers are required to submit breath samples for the purpose of measuring BAC. Refusal is a motor vehicle offense, separate from DWI and punishable by driver’s license suspension and a fine.

Proving that a driver was “under the influence” can be far more difficult, especially if BAC is unavailable or less than 0.08 percent. The statute does not define the term, beyond the implication that a driver must be impaired to a similar degree as one with 0.08 percent or greater BAC. Police officers may testify about their observations of a defendant’s demeanor and appearance, as well as other evidence from the scene. This testimony often includes elements like slurred speech, clumsy movements, bloodshot eyes, and the odor of alcohol. Not all “intoxicating” substances affect people the same way, though. This is supposedly where DREs come in.

DREs are police officers who have received a course of training in the outward signs of intoxication by various substances, such as marijuana and other drugs. The Los Angeles Police Department developed the methodology and created the first formal program in the 1970’s. According to the International Association of Chiefs of Police, which administers a nationwide certification program, New Jersey established a DRE program in 1991. As of the end of 2018, New Jersey has 463 certified DREs, the second-largest program in the country after California. DRE testimony is therefore a significant factor in New Jersey DWI defense.

In March 2019, the New Jersey Supreme Court agreed to hear the appeal of a November 2018 ruling by the Appellate Division. The appellant was convicted of DWI, despite BAC below 0.08 percent, because of DRE testimony. He is arguing that the DRE program fails to meet the standards established by the New Jersey Supreme Court for proving the “general acceptance” of “newly-devised scientific technology,” and that the DRE’s testimony therefore should not have been admitted into evidence.

DWI attorney Evan Levow has dedicated his law practice to the representation of people facing alleged DWI charges in New Jersey. Please contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with us to discuss your rights and options.

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