Drug recognition experts are reliable enough to provide evidence, special master says

Testimony from police officers trained to identify whether someone is drug-impaired is reliable enough to be evidence, a court-appointed special master said in a voluminous and eagerly awaited report released Thursday.

Special Master Joseph Lisa, a retired appellate judge, was appointed special master by the state Supreme Court in 2019 to settle a dispute over the validity of drug recognition experts, who are trained to identify signs of impairment using a standardized 12-step process.

Lisa’s 384-page report, written after 42 days of testimony by 16 witnesses, finds the 12 steps used by drug recognition experts — they include breath and toxicology tests, along with interviews and eye examinations, among others — are generally reliable, and some are scientific.

“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,” the report reads.

Data reviewed by Lisa shows that of 2,551 cases where detained drivers had a toxicology report, only 82 — or 3.2% — were “false positives,” meaning drug recognition experts said there was use of an impairing drug, but none was found in the driver’s system, according to the report, which noted toxicology data was missing for 27% of cases.

Lisa’s appointment stems from a 2015 case against a man named Michael Olenowski who was convicted of driving while intoxicated with the help of testimony from a drug recognition expert.

But it could have some relevance in the state’s ongoing debate about workers who use cannabis. Business leaders are awaiting new state regulations that are expected to say whether employers can use drug recognition experts to determine if a worker is high on the job.

In Olenowski’s case, a Breathalyzer detected no alcohol in his blood, but a drug recognition expert found he was under the influence of stimulants or depressants affecting the central nervous system. No blood or urine tests were conducted.

Olenowski, who died in 2020, alleged in an appeal to the New Jersey Supreme Court that drug recognition experts had not been accepted by the broader scientific community and, therefore, were too unreliable.

The Office of the Public Defender, which represented Olenowski, argued drug recognition expert testimony should only be allowed in cases where toxicological assessments, the final step in the experts’ process, are conducted. They plan to appeal.

But Lisa noted drug recognition experts usually write their reports before the results of toxicological tests are returned, adding that obtaining warrants for all toxicological tests would be impractical because suspects can refuse to give a urine or blood sample without penalty in New Jersey, and police would otherwise need a warrant to obtain them.

At present, New Jersey State Police procedures instruct officers to obtain warrants only after crashes involving serious injury or death.

“In the case of some drugs, the time lost in obtaining a warrant and blood sample could result in the dissipation of the evidence of drug use,” Lisa wrote. “DRE evaluations are ‘typically in the middle of the night,’ and it would burden the police, particularly small departments that may have a skeleton crew, to impose a routine warrant requirement.”

One statistician tapped by the special master found drug recognition experts’ assessments were accurate between 82.5% and 92.6% of the time, while another said they were no better than flipping a coin.