Court Ruling May Affect Role of Drug Recognition Experts in OWI Cases By Andrew Mishlove on November 30, 2023

On November 15, 2023, the New Jersey Supreme Court made an important ruling in the State v. Olenowski case. This court decision may affect intoxicated driving cases across the country for years. Many high-profile OWI/DUI defense attorneys have followed the Olenowski case given its focus on testimony from drug recognition experts, or DREs.

Many of our clients here in Wisconsin are not familiar with DREs and the role they play in OWI prosecutions. Below are some basic facts about drug recognition experts, followed by a breakdown of the Olenowski case and why it could have national importance.

What You Should Know About Drug Recognition Experts

Let’s first go over drug recognition experts and their role. This foundation should give you a better understanding of the State v. Olenowski.

What DREs Try to Determine

Drug recognition experts are law enforcement officers who are trained to recognize signs that a driver is impaired by drugs and alcohol.

The Origin of DREs

The DRE program was developed in the early 1970s by traffic enforcement officers of the Los Angeles Police Department. LAPD management officially recognized DRE protocols in 1979.

The National Highway Traffic Safety Administration (NHTSA) adopted DRE protocols in the early 1980s, with DRE certifications issued by the International Association of Chiefs of Police (IACP).

The 12-Step Protocol

All DREs are expected to follow a standardized 12-step process known as the Drug Influence Evaluation (DIE). The steps are as follows:

Breath Alcohol Test - The DRE reviews breathalyzer results and the subject’s apparent impairment.
Interview of the Arresting Officer - The DRE discusses details of the arrest with the officer.
Preliminary Examination and First Pulse - The DRE interviews the subject and determines if medical attention is required. The subject’s pulse is taken for the first time.
Eye Examination - The DRE checks the subject’s eye movement for signs of impairment.
Divided Attention Psychophysical Tests - The DRE conducts physical coordination tests similar to a field sobriety test.
Vital Signs and Second Pulse - The DRE measures the subject’s pulse a second time as well as their blood pressure and body temperature.
Dark Room Examinations - The DRE checks the size of the subject’s pupils.
Examination for Muscle Tone - The DRE checks for loose or flaccid muscles as a potential sign of impairment.
Check for Injection Sites and Third Pulse - The DRE checks for signs of intravenous drug use and takes the subject’s pulse a third and final time.
Subject’s Statements and Other Observations - The DRE reads the Miranda warning and then asks the subject questions pertaining to drug or alcohol use.
Analysis and Opinions of the Evaluator - The DRE makes an assessment of the subject’s impairment based on previous evidence.
Toxicological Examination - A toxicology test is conducted to look for traces of drugs in the subject’s system.

DRE Training Curriculum for Law Enforcement

According to the IACP, the three-phase DRE training process can be completed in 112 to 132 hours. Typically this involves a four-week course.

The idea that someone can be an “expert” in OWI assessments after a relatively short amount of time should give everyone pause.

The State of New Jersey v. Olenowski: The Facts of the Case

In 2015, Michael Olenowski was convicted of driving while intoxicated. This conviction relied on the testimony of a drug recognition expert.

At the time of Olenowski’s arrest, a breath test found no alcohol in his system. A DRE claimed that Olenowski was under the influence of stimulants or depressants, yet no blood or urine tests were conducted to verify the DRE’s non-scientific assessment.

Olenowski was represented by the Office of the Public Defender, which argued that DRE testimony should only be permitted when there is a toxicology test. Toxicology testing is the final part of the DRE 12-step protocol, yet as you can see, not all steps of the process have to be completed in order for a DRE to testify in court. A mistaken conviction is possible.

Olenowski passed away in 2020 at the age of 57.

Initial Special Master Report in 2022

In 2019, the New Jersey Supreme Court appointed Joseph Lisa as a special master to address whether a drug recognition expert’s testimony is valid.

According to a report by the New Jersey Monitor, Lisa found that the DRE’s 12 steps were “generally reliable, and some are scientific.” Lisa went on to note that as long as there was a toxicology report, the rate of false positives was 3.2%. In these cases, a “false positive” means that the DRE claimed a driver was impaired from drug use even though the toxicology test found no drugs in the driver’s system.

A 3.2% chance of erroneous conviction based on non-scientific observation is still too high. The Office of the Public Defender appealed the special master’s findings to the New Jersey Supreme Court.

Split Decision in the New Jersey Supreme Court

In a 5-2 decision, the New Jersey Supreme Court upheld the reliability of drug recognition expert testimony. However, the majority opinion in this 2023 ruling has some important caveats regarding drug recognition experts in court.

The Majority Opinion

Superior Court Judge Jack Sabatino wrote the majority opinion, noting two key restrictions on DRE testimony:

A DRE can say that a driver’s impairment is consistent with the effects of a drug, but a DRE cannot claim a driver was impaired because they took said drug.
A DRE can only testify if law enforcement also completed a toxicology report. Law enforcement cannot include DRE testimony if they did not attempt any kind of toxicology testing. (This excludes cases where a driver refused to take a blood, urine, or hair sample test.)

In Sum

The Olenowski case is the story of a man convicted based on subjective observation instead of empirical facts. When it comes to drug recognition experts, the case is also a story about the marketing of “expertise,” which raises questions about who should be considered an expert witness.

The most important takeaway in the majority opinion is this: DRE testimony alone cannot be used to determine if a defendant is guilty of OWI/DUI.

You can read both the majority opinion and dissent in the case here.

Why New Jersey v. Olenowski Is Important

In the years to come, you can expect added scrutiny on DRE testimony across the country. This will be particularly true if a DRE testifies without toxicology results that can verify their claims of impaired driving.

What the Ruling Means for People Arrested for OWI

If you were arrested for OWI here in Wisconsin because of a DRE’s assessment, that “expert” opinion can be questioned in court if it’s not backed up by a toxicology report and scientific data.

What the Ruling Means for People Convicted of OWI

For any OWI convictions based on DRE testimony alone, there’s a good opportunity to appeal an unfavorable ruling and get those charges dropped or reduced.

Keep in mind that a Notice of Intent to Pursue Post-Conviction Relief needs to be filed in the trial court within 20 days of the sentencing hearing.

Need to Speak With an OWI Attorney? Request a Consultation Today

Whether you’re facing a first-offense drunk driving charge or arrested for driving under the influence of marijuana, you can count on our law firm for help. We want to hear what happened to you and offer our honest opinion of what steps you can take next. To set up a consultation, contact our Wisconsin law offices today.

About Andrew Mishlove
A board-certified OWI defense specialist, Andrew Mishlove has practiced law in Wisconsin since 1981. He is a nationally recognized figure when it comes to drunk and intoxicated driving defense. Mr. Mishlove is the author of Wisconsin OWI Defense: The Law and Practice and is on the Board of Regents of the National College for DUI Defense (NCDD).

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