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October 14, 2019

NJSBA amicus roundup: Supreme Court hears arguments on drug influence evaluations and the tax treatment in inheritance tax transfers

State v. Olenowski

Drug recognition expert (DRE) opinions based on drug influence evaluations (DIEs) are not generally accepted within the scientific community under Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), the New Jersey State Bar Association (NJSBA) said in its amicus curiae argument to the state Supreme Court last week. NJSBA member John Menzel argued the matter before the court, urging the court to exclude the DIE evidence in the case and remand the matter for the development of an appropriate foundation before the evidence can be admitted. The brief was written by Menzel, Joshua H. Reinitz, and NJSBA past president Miles S. Winder III.

The court focused on the question of why a special master should not be appointed to review whether DIEs meet the standards for admissibility, noting competing studies and scholarly writings on the issue, the credibility of which the court cannot evaluate without further hearings.

The subject lawsuit arises from Olenowski’s convictions for driving while intoxicated, which occurred on two separate occasions in the same year. He drew a reading of .04 percent blood alcohol content the first time and a zero percent reading the second, but was visibly impaired, according to the officers who arrested him and the DREs who evaluated him. The trial court upheld the convictions, holding that DRE evidence was “generally acceptable and reliable in the scientific community.” The decision was upheld by the Appellate Division.

In its brief, the NJSBA argued that neither the DIE technique nor the DRE opinion are generally accepted in the scientific community or sufficiently reliable to indicate that Olenowski was driving under the influence. “The NJSBA asks this court to declare the DIE technique and DRE opinion derived therefrom inadmissible for any purpose unless its proponent, the state, lays appropriate foundation,” the NJSBA wrote. “Such a ruling would provide guidance to trial courts and avoid the errors committed in the present case.”

Van Riper v. N.J. Division of Taxation

The state Supreme Court heard oral argument on the proper inheritance tax assessment on property owned by a husband and wife transferred to a trust created as part of an estate plan, when each of them also retained a life estate interest. NJSBA member Andrew J. DeMaio argued the matter as amicus curiae on behalf of the NJSBA, urging the court to promote certainty and predictability in the law by affirming the decades-long practice of assessing 50 percent of the tax at the time of the death of the first spouse and the remaining 50 percent upon the death of the other spouse. The brief was written by DeMaio, Glenn A Henkel, Jill Lebowitz, and Heather G. Suarez.

In a published opinion, the Appellate Division upheld the division of taxation’s determination that the full date-of-death value of the residence transferred into an irrevocable trust by a married couple was taxable at the death of the second spouse. The argument weighed competing doctrines of tenancies by the entirety with trust law. On one hand, the transfer of the residence into the irrevocable trust destroyed the tenancy by the entirety, the NJSBA wrote. Therefore, when the first spouse died, the estate should have been assessed a 50 percent ownership interest to that spouse. Instead, when the wife died six years later, her estate was assessed inheritance tax based upon a 100 percent ownership interest in the property.

The Supreme Court questioned whether more predictability resulted from an inheritance tax assessment upon the death of the last surviving spouse, since that is when any beneficiaries actually receive the property as an inheritance and the precise amount of assets passing to them is known. Assessing a tax upon the death of the first spouse could require beneficiaries to pay tax on an inheritance they may never receive, as the property could be sold or encumbered to care for the surviving spouse. The NJSBA argued that while other states have created statutes that permit spouses to transfer real estate without destroying the benefits of tenancies by the entirety, New Jersey is not one of them. “There is simply no statutory support [for such tax treatment],” the NJSBA wrote in its brief.

In addition to the association’s amicus involvement, NJSBA member James J. Curry Jr., of Toms River, represents the petitioner.

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.