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What You Need to Know About New Jersey Drug Recognition Experts (DREs)

by | Jan 11, 2023 | Employment Law |

What Does a Drug Recognition Expert Do?

With the legalization of marijuana in New Jersey, employers are starting to implement the use of Drug Recognition Experts or DREs.  These are individuals who are trained to recognize if an employee is under the influence of drugs, including marijuana.  In the workplace, these “experts” may conclude that an employee is under the influence of some substance and notify the HR department, who may then request drug testing or recommend termination.

How Accurate are Drug Recognition Experts?

The New Jersey Supreme Court is considering whether evidence from a DRE would pass muster and be admissible as credible scientific evidence in workplace termination cases.  (State v. Michael Olenowski).  In this case, Mr. Olenowski was found to be driving under the influence on two separate occasions by a DRE.  In both instances, his blood alcohol content tests showed his levels to be below the legal limit, yet the DREs determined that he was visibly impaired.

Is a DRE Scientifically Reliable?

New Jersey and federal courts require evidence to be scrutinized to ensure that it is actually based in known and accepted science before being considered “scientific evidence” and thereby afforded a higher level of credibility. The courts are split on whether to apply the Frye or Daubert test of admissibility and in what context.  For instance, New Jersey Courts apply the Frye test in criminal cases but the Daubert test in civil cases.  The whole landscape is a bit messy when it comes to DRE evidence, now being introduced in civil cases to justify an employee’s termination – even after the legalization of marijuana in New Jersey.

How Do I Challenge DRE Testimony? 

Regardless of which legal standard is applied to the evidence, employees must be aware of the use of New Jersey Drug Recognition Experts in workplaces and that employers may rely upon a DRE’s opinion to justify an employee’s termination.  

If your employer announces the use of DREs in their workplace to conduct drug impairment evaluations (DIE’s), pay attention.  Understand the DREs training, what their evaluation protocol is, and how they will be used.  More importantly, if you are suffering from any medical condition or taking any medication, which may result in a DRE concluding that you are impaired in some way, make sure that you provide your employer with medical information that rebuts the DRE’s conclusion.  

You will need to be protective and quickly responsive to make sure that you provide the necessary information before the employer makes the decision to terminate.  You must also be particularly vigilant if you have already been experiencing some harassment, retaliation, or other negative treatment, as the employer may try to use the NJ Drug Recognition Expert’s evidence to justify your termination as a legitimate business reason.

As an employee, you will need to be agile and quick in your response to protect yourself at work, as New Jersey’s use of Drug Recognition Experts gathers momentum. These matters often require an experienced attorney’s assistance. Reach out to Hamilton Law Firm for assistance resolving your DRE-related matters in the workplace.