Capitol Report

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March 2, 2020

Court backs NJSBA position and denies stay of proceedings involving DRE testimony

The Supreme Court denied a motion earlier this month to stay proceedings that raise issues regarding the admissibility of drug recognition experts (DREs) testimony, which may be potentially affected by the pending appeal in the matter of State v. Olenowski. The Supreme Court has appointed a special master to hold hearings and make a recommendation on the reliability of DRE evidence in the matter, calling into question the reliability of expert testimony of DREs who perform drug influence evaluations (DIEs). The trial court upheld the convictions of Michael Olenowski for driving while intoxicated on the basis of DRE testimony, a decision which the Appellate Division affirmed.

The New Jersey State Bar Association (NJSBA) filed an amicus curiae brief questioning the legitimacy of DRE testimony, arguing that it lacks the foundation to meet the Frye standard for expert opinions. “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,” the NJSBA brief said. Absent this, DRE evidence should be inadmissible, argued the NJSBA.

The NJSBA opposed the state’s request for a stay of other matters involving DRE evidence, contending in a brief drafted by John Menzel, Joshua H. Reinitz and Miles S. Winder III that a blanket stay fails to account for other factors in each individual case and could result in an injustice to the parties if a case could be resolved on other grounds.

The Supreme Court order, dated Feb. 14, makes clear that “[t]he Court expresses no view on the merits of any stay application filed in an individual case in Municipal Court or Superior Court by a party to a proceeding involving DRE testimony.”

The NJSBA continues to monitor this case.

Harris Announcement amendments to expand tenants’ rights becomes effective

The Supreme Court-adopted amendments to the Court Rules Appendix XI-S, otherwise known as the Harris Announcement, became effective yesterday, allowing a tenant up to three business days after a warrant of removal is executed to pay all rent due and owing, plus court costs, to the landlord in order to have a judgment for possession dismissed with prejudice. The law was enacted on Jan. 13 prohibiting a landlord from refusing to accept this timely payment or from cooperating with charitable organizations or rental assistance programs that have committed to pay the tenant’s rent. Within two days after such payment of all of the rent due and owing, the landlord must provide the court with a written notice that the rent was paid, and provide a copy to the tenant.

The Harris Announcement is the result of a decision in Community Realty Management v. Harris, 155 N.J. 212 (1988), in which the Supreme Court held that the courts must explain landlord/tenant procedures to tenants, especially those without the benefit of legal counsel. The Court adopted a uniform notice, incorporated in the Rules of Court as Appendix XI-S, that has been used statewide since 2001. This notice is served on all tenants with the complaint and summons, and the substance of the Harris Announcement is also read orally by judges presiding over landlord/tenant proceedings and shared via video recordings in English and Spanish.