Capitol Report

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June 10, 2019

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. 
Drug influence evaluation not generally accepted scientific evidence, says NJSBA to Supreme Court
The New Jersey State Bar Association (NJSBA) sounded off on the lack of scientific reliability of drug influence evaluations (DIE) in assessing a person’s guilt in a driving under the influence matter, stating that the prosecution failed to establish its general acceptance within the scientific community under the Frye v. U.S., 293 F. 1013 (1923) standard. It filed an amicus curiae brief with the Supreme Court in the matter of State v. Olenowski, Docket No. 082253. The brief was written by NJSBA members John Menzel, Joshua H. Reinitz and past NJSBA President Miles S. Winder III. 
The matter emanates from defendant Michael Olenowski’s conviction for driving while intoxicated, which occurred on two separate occasions in the same year. In his first arrest, Olenowski appeared impaired, but had a blood alcohol content of .04 percent, drawing a request for a drug recognition expert (DRE) to perform a DIE. The DRE concluded Olenowski was under the influence of a combination of drugs and alcohol. His second arrest, which occurred six months later, registered a zero-percent blood alcohol content, though he failed field sobriety tests, drawing another request for a DRE. That DRE also concluded that Olenowski was under the influence of a combination of stimulants and depressants. The Law Division upheld the convictions, holding that DRE evidence was “generally acceptable and reliable in the scientific community.” The Appellate Division affirmed, finding that there was “sufficient credible evidence in the record” to support the Law Division’s findings that Olenowski was driving while intoxicated on both occasions.
The NJSBA urged the Supreme Court to exclude the DRE evidence because of the lack of foundation that these tests meet the requirements of Frye. “Given the scientific nature of the DIE and DRE opinion, the appropriate standard of review for their admissibility should be based on general acceptance within the scientific community,” wrote the NJSBA. 
The brief underscores the susceptibility of the accuracy of DRE opinions, pointing out that the relationship between the results of the DIE and the consumption of drugs or driving impairment are inconsistent among the scientific community. Unless the proponent of DIE techniques and DRE opinions derived from them lays an appropriate foundation, the NJSBA urged the Supreme Court to declare this evidence inadmissible for any purpose. It further argued that admissibility in prior cases is not enough to show general acceptance, and more is needed to meet that standard.
Oral arguments are not yet scheduled in this matter. 
Primary Day in New Jersey leaves few surprises
In what is typically one of the lowest turnout elections in New Jersey, last Tuesday’s primary election garnered few surprises as voters head into the general election in November. In the Assembly, incumbent Joe Howarth lost to Jean Stanfield, who will retire as Burlington County sheriff. Republican Howarth lost his party’s support after last year’s party switch of Senator Dawn Addiego, who is now a Democrat. Howarth’s delayed response to the Republican establishment in the days following Addiego’s announcement drew concerns about Howarth’s own allegiance to the party. He ran as a “MAGA Republican,” touting his loyalty to President Donald Trump. 
In District 25, an open seat left by outgoing Assemblyman Michael Patrick Carroll was picked up by another Republican, Brian Bergen. Bergen is a veteran of the Iraq war and a small-business owner. Carroll gave up his seat to run for surrogate in Morris County, but lost in a surprising finish to Freeholder Heather Darling, a lawyer. 
NJSBA member Cara Parmigiani won one of three seats for the Democratic nomination to run for Morris County freeholder in the fall.