NJSBA urges Daubert standard in review for criminal cases. In the ongoing issue of whether Drug Recognition Experts (DRE) are reliable, the New Jersey State Bar Association urged the Supreme Court to apply the Daubert standard of evaluating scientific reliability of using drug influence evaluations (DIE) in driving under the influence (DUI) matters. In its latest amicus filing in State v. Olenowski, the NJSBA urged the application of the Daubert standard, rather than the Frye standard, and said that the record fails to establish the reliability of the DIE technique and DRE opinion.

“The Daubert standard recognizes that science is always evolving and flexibility is required to determine if the particular technique at issue has moved to the point of being considered reliable,” said the NJSBA in its brief. “By enunciating a range of factors, Daubert provides a roadmap for the types of proofs that trial judges can consider to aid them in making an appropriate evidentiary determination, as opposed to Frye, which simply states a ‘general acceptance’ standard.” NJSBA member John Menzel wrote in the brief.