SARAH C. HUNT: I AM HAEP TO MOVE YOJ TO THE MERITS I WANT TO START OFF BY ADDRESS
WHAT LOOKS LIKE A DAYS PART IN IN ERROR RATE NUMBER. WHAT
JUDGE LISA FOUND IS 3.2 PUBLIC EMPLOYMENT RETIREMENT SYSTEM. THAT WAS ONLY 82
OUT OF OVER 2500 CASES, NON TRAINING CASES, IN WHICH THE DRE OPINION OF
IMPAIRMENT WAS NOT CORROBORATED BY AN INTOXICATION TOLL GEE. THAT IS 3.2 PUBLIC
EMPLOYMENT RETIREMENT SYSTEM OF THOSE 2500 CASES. THAT IS THE NUMBER OF
FALSE POSITIVES. WHAT HAS BEEN PRESENTED AS THIS 78 PUBLIC EMPLOYMENT RETIREMENT SYSTEM
ERROR RATE AND COMMUNITY SUPERVISION FOR LIFE PART OF THE BASIS FOR THE
DEFER AND THERE A NAK HE DISCUSSING THE SPNL FOR IN A FIND WILL GO OF 3.2 PUBLIC
EMPLOYMENT RETIREMENT SYSTEM, IS A MISTAKEN IMPRESSION ONE, THAT THE SPECIAL MASTER WAS REPORTING 3 POIRNT 2 PUBLIC EMPLOYMENT RETIREMENT SYSTEM AS THE FALSE
DIFFERENT THINGS. 82 OR 3. 2 PUBLIC EMPLOYMENT RETIREMENT SYSTEM IS THE NIM OF
FALSE POSITIVES THE FALSE POSITIVE RATE OERNLDZ IS A STAS CALIFORNIA METRIC
AND IT'S ONE THAT DOCTOR SLIS INTERPRETER MAN EXPLAINED COULD NOT BE DETERMINED
IN THIS CASE BECAUSE THERE WERE NOT ENOUGH THERE WERE NOT ENOUGH DRUG NEGATIVE
CASES TO BE ABLE TO RELY ABL BLEE ESTIMATE THAT STATISTIC. SO THE 78 PUBLIC
EMPLOYMENT RETIREMENT SYSTEM IS ACCURATE IN THE NUMBERS THAT IT IS BASED ON BUT
IT IS A STATISTICAL METRIC THAT CANNOT BE RELIABLY ESTIMATED IN THIS CASE.
AND SO I WANT TO MAKE VERY CLEAR THAT THOSE ARE TWO VERY DIFFERENT THINGS. AND
CANNOT BE COMPARED AND FOR THE SAME REASON THERE IDEA THAT THE SPECIAL MASTER
IMPROPERLY FOUND A FALSE POSITIVE RATE OF 3 TOINT 2 PUBLIC EMPLOYMENT RETIREMENT SYSTEM
IS NOT IS SIMPLY NOT TRUE HE WASN'T CALCULATING THE FAULGS POSITIVE RATES
HE WAS CALCULATING THE NUMBER OF FALSE POSITIVES. JUDGE
SABATINO: SO IF GOING BACK TO WHAT I ASKED THE OTHER SIDE, IF IN FACT WE DON'T
HAVE ADEQUATE DATA IN THIS VERY EXTENSIVE RECORD TO DETERMINE THE ACTUAL
FALSE POSITIVE RATE, WHO DOES THAT DISADVANTAGE? DOESN'T IT DISADVANTAGE THE
STATE BECAUSE YOU HAVE THE BURDEN OF ESTABLISHING 3 THROUGH YOUR PROVE THAT
THE EXPERT'S TESTIMONY IS RELIABLE AND ADMISSIBLE. SARAH C.
HUNT: YES WE DO HAVE THE BURDEN OF ESTABLISHING THAT THE EXPERT'S TESTIMONY IS
RELIABLE. I HAVE A MULTI PART AND ALSO THE FIRST PART IS THAT ALL OF THE
DAL BERTH FACTORS ARE ADVISORY NONE OF THEM ARE NECESSARY SO THE STATE IS NOT
REQUIRED TO SHOW A LOW ERROR RATE. WE DID SHOW ENOUGH NUMENTS IN THIS CASE
THAT WE COULD -- THAT COULD LET ME MAKE ONE MORE EXPLANATION FIRST. ERROR RATE
AS A DAL BERTH FACTOR IS COMMUNITY SUPERVISION FOR LIFE A LAWYER'S
DESCRIPTION OF A #234U78, ERROR RATE, BUT THERE ARE VARIOUS STATISTICAL MET TRICKS
THAT COULD BE USED TO COMMUNITY SUPERVISION FOR LIFE DISCUSS A RATE OF ERROR
OR HOW CORRECT HOW OFTEN SOMETHING MIGHT HOW OFTEN A TEST MIT BE CORRECT.
SO ERROR RATE IS NOT NECESSARILY THE SAME THING AS FALSE ERROR RATE AS IT IS USED
IN DAL BERTH AND IN ACCUTANE AND IN ALL OF THE CASES IS NOT NECESSARILY
THE SAME AS FALSE POSITIVE RATE. SO I JUST WANT TO CLARIFY THAT FIRST AND THEN
TO SAY THE STATE WAS NOT OBLIGATED TO SHOW A VERY LOW FALSE POSITIVE RATE
HERE. ERROR RATE IS SOMETHING THAT IS WHEN IT CAN BE CALCULATED IS CAN POTENTIALLY
BE RELEVANT, A JUDGE IN A PARTICULAR CASE MAY HAVE REASONS FOR FINDING IT IS
LESS IMPORTANT THAN OTHER FACTORS OR MORE IMPORTANT THAN OTHER FACTORS,
DEPENDING ON THE GIVEN INDICATES AND WHAT'S AVAILABLE. AND IN THIS CASE THE ERROR
RATE THE STATE PRESENTED ALL OF THE EVIDENCE AND ALL OF THE NUMBERS THAT
IT HAD AND THAT COULD BE RELIABLY CALCULATED. AND IT'S IMPORTANT TO REALIZE
WHY CERTAIN NUMBERS CAN'T BE RELIABLY ESTIMATED IN THIS WHY CERTAIN
STATISTICAL MET TRICKS CANNOT BE RELIED BLEE ESTIMATED IN THIS CASE. AND THAT IS A
VARIETY OF COMMUNITY SUPERVISION FOR LIFE PRACTICAL AND CONSTITUTIONAL AND
ETHICAL REASONS THAT A FULL TEST OF THE DRE PROTOCOL LIKE THE FIVE STEP PROCESS
SUGGESTED BY THE PEE DEES' OFRTS SIMPLY ISN'T POSSIBLE. YOU CAN'T RUN A STUDY
AND DOSE PEOPLE WITH FET NAL AND THEN HAVE THEM DRIVE. THEY COULD BE KILLED.
YOU CAN'T RANDOMLY TEST DRIVERS ON THE ROAD, YOU CAN'T RAM DOMLY RUN THEM THROUGH
THE DRE PROCESS OR PULL THEM OVER BECAUSE THAT WOULD BE UNCONSTITUTIONAL
AL. THERE IS A VARIETY OF REASONS THAT THESE COMMUNITY SUPERVISION FOR LIFE
STATISTICAL MET TRICKS MIGHT BE UNEAST MA ABL IN THIS CASE. SO.
CHIEF JUSTICE RABNER: TAKE THE SECOND ONE, IT RELATES TO AN ARGUMENT FROM THE
A CREDIT WILL YOU AND THE 0 PED THAT THE STATISTICAL ANALYSIS IS FLAWED
BECAUSE IT RELIES ON A POPULATION OF DRIVERS ALREADY SUSPECTED BY POLICE OF DRIVING
WHILE IMPAIRED AND THAT WE SHOULD BE LOOKING AT THE GENERAL POPULATION.
HOW DOES THAT CUT? ACCEPT WHAT YOU JUST SAID THAT IT IS IN EAST TA NABL BUT WHICH
WAY DOES THAT CUT? SARAH C. HUNT: THE I DON'T THINK THAT
IS A FAIR CRITICISM AND DOCTOR SHISTERMAN DIDN'T THINK THAT WAS A FAIR CRITICISM
EITHER HE EXPLAINED AND JUDGE LISA FOUND THAT THE APPROPRIATE POPULATION BY WHICH
TO JUDGE THE VALIDITY OF THE DRE PROGRAM IS THIS POPULATION OF DRIVERS WHO
HAVE BEEN PULLED OVER AND WHO HAVE COMMUNITY SUPERVISION FOR LIFE BEEN WHOSE
BLOOD ALCOHOL CONTENT DOES NOT ISN'T CONSISTENT WITH THEIR APPARENT LEVEL
OF IMPAIRMENT. JUSTICE WAINER APTER: IS THAT BECAUSE THE
APPROPRIATE POPULATION ON WHICH TO TEST PROTOCOL IS THE POPULATION THAT COULD AT
SOME POINT IN THE YOOFRS OF TIME BE SUBJECTED TO THE PROTOCOL? AND THAT IT WOULD
NOT BE APPROPRIATE TO TEST PROTOCOL ON PEOPLE WHO COULD NEVER POSSIBLY BE
SUBJECT TO THE PROTOCOL SO FOR EXAMPLE, SOMEONE WHO IS PULL OVER FOR FAILING TO
SIGNAL A LANE CHANGE AND THEN IS GIVEN A CITATION, SENT ON THEIR WAY NO
EVIDENCE OF IMPAIRED DRIVING, THAT PERSON COULD NEVER BE SUBJECTED TO THE PROTOCOL,
SO ARE YOU SAKE IT WOULD BE NAEN TO TEST PROTOCOL ON THAT PERSON BECAUSE
THAT PERSON COULD NEVER POSSIBLY IN THE YOOFRS BE SUBJECT TO THE PROTOCOL?
SARAH C. HUNT: I THINK BOTH INAPPROPRIATE AND UNNECESSARY. DOCTOR SLIS
INTERPRETER MAN EXPLAINED THAT THE PROPER WAY TO EVALUATE A TEST IS BY THE
INTENDED POPULATION. AND SO THE INTENDED POPULATION HERE IS THAT SUB SET OF
DRIVERS AND SO THAT'S THE APPROPRIATE POPULATION TO USE WHEN YOU'RE EVALUATING
THE PROTOCOL ITSELF. CHIEF JUSTICE RABNER: IS THERE BIAS
THEN BUILT INTO THE PROCESS, AND BY THAT I'M REFERRING TO TAKE THE STEP
OF THE PROTOCOL THAT SAYS INTERVIEW, YOU GET AN ADMISSION, DOES THAT HAVE AFFECT
ON THE OVERALL ANALYSIS THAT MAY RAISE RELIABILITY QUESTIONS WITH RESPECT
TO IT? SARAH C. HUNT: SO NO FOR SEVERAL REASONS. FIRST,
THIS IS SOMETHING THAT WAS STENS IFL DISCUSSED AT THE HEARING BELOW AND KIEFR
SUGGESTEDED BY THE DEFENSE BLEE AND THE SPECIAL MASTER CORRECTLY FOUND THOO
THESE CONCERNS OF BIAS FROM THESE COMMUNITY SUPERVISION FOR LIFE INITIAL STEPS
ARE NOT REALLY ARE NOT SIGNIFICANT CONCERNS HERE. ONE, BECAUSE DRES ARE
FROLY TRAINED TO KEEP AN OPEN MIND THROUGHOUT THEIR EVALUATION, AND TWO, BECAUSE
IF YOU LOOK AT THE INTOXICATION DROEM RECOGNITION PROCESS ON WHICH THE DRE
PROTOCOL IT IS COMMUNITY SUPERVISION FOR LIFE BASED, IT'S THE SAME SORT OF PROCESS
THAT DOCTORS USE. THEY INTERVIEW THE PERSON, THEY INTERVIEW THE EMT OR THE
FAMILY MREB WHO BROUGHT THEM IN THE HOSPITAL TO LEARN MORE INFORMATION ABOUT THE
CIRCUMSTANCES SURNTDING THEIR CONDITION. SO JUST AS YOU MAY INTERVIEW AN
OFFICER AND ASK THEM WHAT WAS FOUND IN THE CAR, WHATEVER THEY MAY HAVE SEEN, A DOCTOR
IS GOING TO INTERVIEW THE EMT AND OR THE FAB AND LEARN IF THERE WERE ANY
PILL BOTTLES AROUND THE PERSON WHEN THEY WERE FOUND OR WHATEVER THE CIRCUMSTANCES
MAY BE. SO THERE IS NOT -- THIS COMMUNITY SUPERVISION FOR LIFE HYPER
BOL I CAN CONCERN OF PRECONCEIVED BIAS SNOIT REALLY SIGNIFICANT HERE BECAUSE BOTH
DRES ARE FROLY TRAINED TO PUT EVERYTHING IN THEIR PROPER CONTEXT AND TO KEEP AN
OPEN MIND AND TO ONLY MAKE THEIR FINDINGS NOT BASED ON JUST THE SUSPECT'S
ADMISSION BUT BASED ON THEIR EVALUATION AS A WHOLE. CHIEF JUSTICE
RABNER: INCLUDING THE ADMISSION. SARAH C. HUNT: INCLUDING
THE ADMISSION BUT ALSO INCLUDING WHAT THE CLINICAL SIGNS AND ALL OF THE
OTHER INFORMATION THAT WAS COMMUNITY SUPERVISION FOR LIFE GATHERED AND SEEN AND
GLEANED FROM THE EVALUATION AS A WHOLE. AND WHEN IT WAS LOOKED AND WHEN DOCTOR
SHISTERMAN LOOKED AT THE RELATIONSHIP BETWEEN SUBJECT ADMISSIONS AND THE RESULTS
OF THE DRE, THERE WAS NO SIGNIFICANT CONNECTION BETWEEN THOSE TWO THINGS.
IT WASN'T THAT IN EVERY SINGLE CASE WHERE A DRE WHERE A PERSON ADMITTED TO USING
WHATEVER SUBSTANCE, THAT PERSON THE DRE THEN FOUND IF A PERSON ADMITTED TO USING
HEROIN IT IS NOT THAT EVERY SINGLE TIME THE DRE FOUND LIKE OPINED THAT THEY
WERE IMPAIRED BY A NARCOTIC AND GEEZ I CAN THE PROPER CATEGORY, THERE WASN'T THAT
SORT OF SIGNIFICANT RELATIONSHIP BETWEEN THROWS TWO THINGS. SO WHILE THE
SUSPECTS ADMISSION OR WHATEVER EVIDENCE MAY HAVE BEEN THE INTERVIEW WITH THE RAEFRG
OFFICER WHATEVER MAY HAVE BEEN FOUND IN THE CAR THOSE SORTS OF THINGS, ARE
PART OF THE ANALYSIS, THEY'RE PROPERLY PART OF THAT ANALYSIS BOTH IN THE LAW ENFORCEMENT
COMMUNITY AND IN THE MEDICAL COMMUNITY AS WELL AND THERE IS SUFFICIENT WAYS
TO COUNTER ANY SORT OF CONCERN ABOUT PRECONCEIVED BIAS.
JUSTICE SOLOMON: THE QUESTION I HAVE GOT IS JUDGE LISA WAS ESSENTIALLY SAYING
FOR THE POPULATION THAT THESE DRES ARE ENCOUNTERING, THEY'RE RIGHT ABOUT 97
PUBLIC EMPLOYMENT RETIREMENT SYSTEM OF THE TIME. THAT'S WHAT HE WAS SAYING, WAS
LY NOT. SARAH C. HUNT: YES GENERALLY. JUSTICE
SOLOMON: AND HE ALSO MADE REFERENCE TO I THINK A COUPLE OF THE STUDIES OR MAYBE
THERE WAS AN EXPERT WHO TESTIFIED THAT TOXICOLOGY DOES NOT PICK UP A
SIGNIFICANT NUMBER OF NASH IKS THAT ARE CURRENTLY BEING AND NEW ONES NOW THAT ARE
BEING MANUFACTURED THEY ARE ALL SYNTHETIC, IT'S NOT JUST BATS SAULTS IT'S
FET NAL AND EVERYTHING ELSE AND THERE IS A POPULATION OULT THERE PERHAPS EVEN HERE
THAT PART OF THAT PUBLIC EMPLOYMENT RETIREMENT SYSTEM THAT IS DRUG I AM
FARD BUT NOT FOUND BY TOXICOLOGY IN OTHER WORDS I THINK JUDGE LISA SAID AT ONE
POINT THAT 3.2 PUBLIC EMPLOYMENT RETIREMENT SYSTEM NUMBER MAY NOT BE LOW
ENOUGH. SARAH C. HUNT: RIGHT. AND I DO THAT BRINGS ME TO
ANOTHER POINT THAT I WANTED TO. JUSTICE SOLOMON: I HAD A FOLLOW
UP TO THAT. DO YOU HAVE ANY SENSE IS THERE ANY SENSE OF WHAT THE PERCENTAGE
OF DRUG USERS, FREQUENT DRUG USERS BECAUSE I THINK THAT'S THE ONLY POPULATION THAT
PROBABLY GETS ANALYZED OR STUDIED IN THIS WAY, ARE USING THOSE LESS DETECTION
ABL SIN THEY THE CLI MANUFACTURED NARCOTICS? I KNOW THERE HAS BEEN AN
EXPLOSION OF FET NAL USE BUT A LOT OF THE FELL NAL YOOFRS ARE ENDING UP DETD UNLESS
THEY ARE TRUE ADDICTS WHO PROBABLY AREN'T DROOIFRG RARND BUT IN ANY EVENT ANY
SENSE OF WHAT THAT POPULATION IS? IS IT SIGNIFICANT? BECAUSE I KNOW THE
PUBLIC DEFENDER'S OFFICE POSITION WAS IT IS IN SIGNIFICANT. SARAH
C. HUNT: SO I DON'T HAVE I CAN GIVE YOU A PUBLIC EMPLOYMENT RETIREMENT SYSTEM
OF WHAT A DRUG USERS ARE USING FET NAL VERSUS OTHER DRUGS BUT I CAN TELL
YOU THAT BOTH AMY MILES AND BRIDGE ET BEER DNA NO THE STATE'S INTOXICATION CLOJ
CALIFORNIA EXPERTS, DID TESTIFY THAT THERE ARE BOTH THAT AS YOUR HONOR RECOGNIZED
THERE HAS BEEN A BOONL IN PET NAL USE IN NEW JERSEY AND ACROSS THE COUNTRY, AND
AT LEAST BRINL ET BERN DNA- EXPLAINED THAT IN NEW JERSEY SPIFRL THERE IS ALSO
THIS COMMUNITY SUPERVISION FOR LIFE SAME ISSUE WITH SYNTHETIC CONTACT NAB NOIDZ
HAS BECOME AND OTHER NOVEMBER EL PSYCHO ACTIVE SUBSTANCE EAST HAVE BECOME A
VERY BIG ISSUE BOTH BECAUSE OF THEIR AVAILABILITY, THE DESIRE OF DRUG MANUFACTURERS
ELICIT DRUG MANUFACTURERS TO COMMUNITY SUPERVISION FOR LIFE KEEP UP WITH THE OR
KEEP AHEAD FRLT SGLIEFRMENTS OF THE TIMES AND THEY ARE AND THESE SUBSTANCES ARE
OFRN UNDETECTABLE BECAUSE THEY ARE NOT KNOWN ABOUT TO BE TESTED FOR AND IN THE
CONTEXT OF FET NAL SPECIFICALLY YOU CAN HAVE A FATAL FET NAL OVERDOSE AT
A LEVEL AT A BLOOTD LEVEL THAT'S BELOW WHAT'S DEES TOSHTH ABL FWIET HA LAB SO YOU
COULD BE AND DOCTOR NELSON EXPLAINED THIS AS WELL, YOU COULD BE LITERALLY
DYING OF A FET NAL OVERDOSE AND STILL SHOW UP NEGATIVE. JUSTICE
WAINER APTER: EVEN ON A BLOOD TEST? BECAUSE I THINK 0 PED WAS ARGIROPOULOSING
THAT THIS IS REALLY THE IDEA THAT FET NAL AND M MANY MANY A -- A LS THE
CAN'T BE TELLS TED IS BECAUSE NEW JERSEY IS ONLY USING URINE DECEMBER CONTINUING
ARE YOU SAYING THAT EVEN IN A BLOOD TEST THAT WOO NOT BE ABLE TO BE DEE TECH.
SARAH C. HUNT: YES THIS IS SOMETHING THAT BRIDGE ET BERN DNA
NO EXPLAINED WITH IN THE CONTEXT OF THE ABILITY OF NEW JERSEY LABS TO TEST BUT
ALSO THAT DOCTOR NELSON WHO IS AN EMERGENCY ROOM DOCTOR IN NEWARK, SO
UNION COUNTY KWOSHGS IN NEW JERSEY, SEES THIS POPULATION A LOT, HE IS THE ONE THAT
EXPLAINED THAT YOU CAN BE DYING OF A FET NAL OVERDOSE AND UNIVERSITY HOSPITAL
IN NEWARK NIGHT NOT BHEE ABLE TO KOOFRN THE BECAUSE IT IS BELOW THE DEETS TEBLG
AB LEVEL. JUSTICE PATTERSON: HOW MUCH OF THE HIM ASIAN
S TO WHAT EXTENT CAN WOO E ATTRIBUTE THE LIMITATIONS ON THE ABILITY OF NEW JERSEY
LABORATORIES TO TEST FOR THESE SUBSTANCE EAST TO JUST SIMPLY THIS IS THE
THESE ARE THE DRUGS WREER' TESTING FOR AND NO MORE VERSUS THE LACK OF FEASIBILITY?
IN OTHER WORDS COULD NEW JERSEY LABS I'M SURE SGLIEFRJTS IT THERE WOULD BE
EXPENSE INVOLVED BUT COULD NEW JERSEY LABS EXPAND THE PARAMETERS OF THEIR TESTING
TO INCORPORATE SOME OF THE IN YOUR DRUGS THAT ARE OUT THERE?
SARAH C. HUNT: SO YES AND NO. THERE ARE CERTAIN THINGS THAT COULD BE DONE IN
NEW JERSEY LABLS AND AS YOUR HONOR CORRECTLY SAID IT WOULD BE AT GREAT
EXPENSE TO EXPAND TESTING CAPABILITIES. CURRENTLY THE INITIAL SCENE IS ONLY RUN
FOR I THINK IT'S THE TOP SEVEN DRUGS THAT ARE COMMUNITY SUPERVISION FOR LIFE
SEEN MOST FREQUENTLY, AND SO UNLESS THERE IS BRIDGE ET BERN FLEEN NO EXPLAINED
UNLESS THERE IS A SPIFRNG UNLESS THE DRE OPINES THAT THE PERSON IS I AM FARD ON
INHALE HANLTD FOR EXAMPLE THEY DON'T EVEN TEST FOR INHALE AND 6789 SO YOU
KNOW IF A YOU HAVE NUFR MONEY IS PUT TOWARDS THE PROBLEM THERE ARE CERTAIN
PROBLEMS THAT COULD BE SOLVED IN THAT WAY. BUT THERE IS ALSO THERE ARE TWO
OTHER ISSUES THAT CAN'T BE SOLVED BY JUST AN UNLIMITED BUDGET AND THOSE TWO ARE,
ONE, DETECTABLE LIMITS AND COMMUNITY SUPERVISION FOR LIFE MARGINS OF ERROR
SO YOU CAN ONLY GO SO LOW ON THE DETECTABLE LIMIT, THE COMMUNITY SUPERVISION FOR LIFE
THE DRUG CUT OFF OR THE TEST BEFORE IT BECOMES BEFORE YOU WOULD RUN INTO
KIEFR MARGIN OF ERRORS PROBLEMS, AND TWO IS AGAIN THIS PROBLEM WITH DRUGS OR
SPECIFICALLY WITH NOVEMBER EL SIEK ACTIVE SUBSTANCE EAST THAT CAN'T BE TESTED FOR
BECAUSE WE DON'T KNOW WHAT THEY ARE. ELICIT DRUG MANUFACTURES ARE
CONSTANTLY CREATING SLIGHTLY CHANGING THE CHEMICAL STRUCTURE, SLIGHTLY CHANGING
WHATEVER COMPOUNDS MIGHT BE IN IT TO STAY AHEAD OF THE GAME AND TO STAY
AHEAD OF LAW ENFORCEMENT. AND SO THOSE SUBSTANCES CANNOT BE TESTED FOR BECAUSE
WE DON'T KNOW THEY EXIST UNTIL PEOPLE START SHOWING UP WITH IT IN THEIR
SYSTEM. AND EVEN THEN THE LABLS HAVE TO GO THROUGH THE PROCESS OF RECOGNIZING
THAT THERE IS SOMETHING NEW OUT THERE, ISOLATEING WHAT THAT NEW THING IS,
AND THEN DEVELOPING A WAY TO TEST FOR THAT NEW SUBSTANCE. JUSTICE
SOLOMON: THEY CAN'T DEFECT IT IT IS NOT SHOWING UP IN THEIR SYSTEM THEY ARE FINE
CAN IT ON THE STREETS AND THAT IS HOW THEY ARE FIENTDING THERE IS NEW DRUGS OULT
THERE. SARAH C. HUNT: THAT AS WELL YES. JUSTICE
SOLOMON: AS WELL I THINK THAT IS THE ONLY WAY. I AM SORRY. YOU CAN CORRECT ME
I APOLOGIZE INTO THAT IS ABSOLUTELY TRUE WE DID AND FOR GIVE ME I CAN REMEMBER
IF IT WAS MS. MILES OR VER DNA NO WHO EXPLAINED IT MIGHT HAVE BEEN BOTH, BUT THEY
EXPLAINED ONE OF THEM EXPLAINED THAT PART OF THE DEE DEE CREDIT P PROGRAM
AS A WHOLE IT IS COMMUNITY SUPERVISION FOR LIFE THIS ONGOING RELATIONSHIP BETWEEN
TOJ SKOKS EVEN AND LAW ENFORCEMENT AND MEDICAL EXPERTS AND THIS GROUN THAT
COMMUNITY SUPERVISION FOR LIFE MANAGES THAT KEEPS UP TO DALT WITH THE PROGRAM.
AND SO PART OF THAT PROCESS IS LAW ENFORCEMENT WILL SAY WE'RE FINDING
THIS NEW DRUG ON THE STREET, IS THERE SOME WAY TO TEST FOR IT, OR TOXICOLOGISTS
WILL YOU KNOW NOTICE THAT MORE PEOPLE THAT MORE BLOOD SAMPLES ARE BEING SUBMITTED
BY SUSPECT IMPAIRED DRIVERS BUT NOTHING IS BEING FOUND AND COMMUNITY SUPERVISION FOR
LIFE SUSPECT THAT THERE IS SOMETHING THAT IS BEING MITSED, AND THEN START
TO INVESTIGATE THAT WAY. SO IT IS IT DOES KOMENTS FROM BOTH ENDS IT COMES BOTH
FROM LAW ENFORCEMENT ON THE STREET AND FROM THE INTOXICATION CLOJ CALIFORNIA
COMMUNITY ITSELF. JUSTICE PIERRE-LOUIS: GIVEN THE INCREASED
USE OF FET NAL, OVER THE PAST FEW YEARS, HAVE YOU SEEN MANY CASES IN WHICH FET NAL
HAS NOT BEEN DETECTED IN A SCENARIO WHERE SOMEONE HAS BEEN STOPPED AND THEIR BLOOD
TOXICOLOGY REPORTS HAVE COME BACK HAVE YOU SEEN A LARGE AMOUNT OF CASES
WHERE THERE IS NO THERE HASN'T BEEN ANY FET NAL DEE TECH? BECAUSE THERE HAS BEEN
SO I MEAN THE INCREASE USE IN FET NAL IS VERY WIDELY KNOWN, NEW JERSEY AND
OVER THE COUNTRY, SO I WOULD BE INTERESTED TO KNOW IF IT IS THE CASE THAT THERE
HAVE BEEN NO POSITIVE FELT NAL TESTS IN THE STATE OF NEW JERSEY.
SARAH C. HUNT: COMMUNITY SUPERVISION FOR LIFE TWO AND ALSO SZ TO THAT. I THINK PART
OF THE PROBLEM IS THAT FOR A LONG TIME NEW JERSEY WASN'T EVEN TESTING FOR
FET NAL UNTIL IT BECAME WHAT IT IS TODAY UNFORTUNATELY. JUSTICE
PIERRE-LOUIS: AND OFSH TIMES FET NAL IS MIXED WITH OTHER SUBSTANCE EAST LIKE HEROIN.
SARAH C. HUNT: ABSOLUTELY. AND POLY WELL YES ABSOLUTELY.
IT'S OFSH MIXED WITH OTHER SUBSTANCE EAST. AND ALSO HEROIN AND FET NAL ARE WITHIN
THE SAME CATEGORY IT IS ALSO MIXED A LOTS OF TIMES WITH DRUGS FROM OTHER
CATEGORIES SO SOMEBODY WILL USE FELT NAL AND COCAINE. BUT PERSONALLY IN MY CASE
EXPERIENCE THAT IS NOT SOMETHING I CAN SPEAK TO BUT BRIDGE ET BEER DNA NO
EXPLAINED FOR NEW JERSEY AND ALSO THE STATES DRE EXPERT EXPLAINED THAT IT IS A PROBLEM
WITH PEOPLE -- THAT THEY HAVE SEEN PEOPLE WHO BY ALL INDICATIONS INCLUDING THE
DRE OPINION, INCLUDING EVIDENCE FOUND THE THE AT THE SCENE WHATEVER IT MAYBE SHG
ARE IMPAIRED BY FELT NAL AND IT IS NOT IT DOESN'T SHOW UP IN THEIR BLOOD TEST.
JUSTICE PIERRE-LOUIS: ARE THERE CASES THAT YOU ARE AWARE
OF WHERE INDIVIDUALS HAVE ADMITTED TO TAKING FELL NATIONAL BUT THE TOXICOLOGY
DOESN'T SHOW THAT? I AM JUST TRYING TO GET AN UNDERSTANDING OF GIVEN THAT
IT IS SUCH AIR BIG PROBLEM, OBVIOUSLY A WIG SGLIESHG BIG ISSUE, I WOULD BE SPRIETSED IF
NONE IF THERE AREN'T ANY CASES WHERE FET NAL HAS NOT COME UP AS AN ISSUE
THAT THE PERSON WAS TAKING FET NAL OR IMPAIRED BY FELT NAL AND EITHER THE INTOXICATION
TOLL GEE REPORT SHOWED THAT OR DIDN'T. SARAH C. HUNT: I DON'T
HAVE A SPECIFIC AND ALSO ON THAT. BUT I WOULD IMAGINE THAT IN THE STATE'S
DATA SET THERE ARE CASES WHERE THE PERSON ADMITTED TO FET NAL USE AND IT WAS NOT FOUND.
I CAN'T SAY THAT BUT GIVEN PAIR WEAR WEAR WE ARE TALKING ABOUT NOT FOUND
IN FWLOOD OR NOT FOUND IN URINE I THOUGHT THERE WAS MATERIAL IN THE RECORD THAT
NEW JERSEY DOOS THAN THE TEST BLOOD ONLY TESTS URINE BUT FELL NATIONAL ISN'T
SHOWING UP IN BLOORN YOORN BUT MAYBE IT COULD SHOW UP IN BLOOD SO YA WOOR TALKING
ABOUT ARE WE TALKING ABOUT BLOOD TEST URINE TESTING DOES NEW JERSEY ONLY
DO URINE TESTING AND IF SO WHY. SARAH C. HUNT: NO NEW JERSEY IS
CAPABLE OF DOING BOTH. JUSTICE PIERRE-LOUIS: I WOULD LIESHG
TO KNOW BOTH I AM ASKING GENERALLY FOR BOTH. SARAH C. HUNT:
I DON'T HAVE A SPIFRNG AND ALSO I JUST BATSED ON 9 TESTIMONY OF BRIRNL BRETS BERN
NEOAND THE STATE'S DRE EXPERT, THAT HAS BEEN AN ISSUE. I CAN'T GIVE YOU
A NUMBER OF CASES, OR I CAN'T POINT TO A SPECIFIC ONE. AS YOUR QUESTION ABOUT
BLOOD VERSUS URINE, NEW JERSEY IS CAPABLE OF TESTING BOTH. MOST MOST OF THE
DRE CASES I BELIEVE ARE URINE CASES SPECIFICALLY. BLOOD IS MOST OFTEN GOTTEN
WITH A WARRANT SPECIFICALLY. BUT NEW JERSEY IS CAPABLE OF TESTING FOR BOTH.
AND FET NAL IS DIFFICULT TO DETECT IN BOTH BECAUSE IT BOTH THE LEVEL AND ALSO IT
DIFFICULTIES PATS AND BREAKS INTO ITS MA TABL BLIETS VERY QUICKLY. SO FET
NAL ITSELF IS DIFFICULT TO FIND AND THEN IT BREAKS DOWN VERY QUICKLY SO IT IS
COMMUNITY SUPERVISION FOR LIFE IN AND OUT OF THE BLOOD SPIFRL VERY QUICKLY
MAYBE A LITTLE BIT LONGER IN THE URINE BUT SAME PROBLEM. I
DO WANT TO ADDRESS ALSO THE IDEA THAT THERE IS A LACK OF STARDZ IN THE NEW JERSEY
DRE PROGRAM. THAT IS SIMPLY NOT THE CASE. THE DRE PROGRAM AS JUDGE LISA
LAID OUT IN GREAT DETAIL IS A VERY STANDARD DICED PROGRAM. THERE IS EXTENSIVE
TRAINING BOTH CERTIFICATION AND RECERTIFICATION. THE DRES HAVE TO GO
THROUGH. THE PROTOCOL ITSELF IS A STANDARD DICED PROTOCOL. THE DID E CREDIT P
AS A WHOLE THE PROGRAM AS A WHOLE IS HAS STRICT STARDZ FOR WHAT AGENCIES CAN
PARTICIPATE. THE PREREQUISITES FOR OFFICERS WHO ARE LOOKING TO BECOME DRES HOW
THE TRAINING IS DONE, WHO THE TRAINING IS DONE BY, ALL OF THIS IS VERY STANDARD
DICED AND WHEN WE TALK ABOUT THE PROTOCOL #I9 RECEIVE, EACH OF THESE THE
PROTOCOL IS A STANDARD DICED 12 STEP PROTOCOL. IT IS OFFICERS ARE TRAINED TO DO
IT IN THE SAME WAY EVERY SINGLE TIME WITH REASONABLE VARIATION. BUT TO
COMPLETE IT IN MORE OR LESS THE SAME WAY EVERY SINGLE TIME. AND IF THEY DON'T
DO THAT, THEY EITHER WON'T BE CERTIFIED INITIALLY OR IT COULD POTENTIALLY BE
AN ISSUE WITH THEIR RECERTIFICATION IF THEY ARE FOUND TO BE DOING IT IMPROPERLY,
IF THEY ARE THEIR SKILLS ARE AREN'T UP TO THE APPROPRIATE LEVEL. AND UNION COUNTY
WHILE THERE MAY NOT BE MAYBE THERE IS NOT A CHECK LIST FOR YOU HAVE TO 3
OF THE 12 STENS HAVE TO POINT TOWARDS ONE DRUG TO BE ABLE TO FIND IT, THAT IS NOT
A LACK OF STANDARDS THAT CUTS AGAINST THE PROTOCOLS FOR LIABILITY. IT IS
THE SAME SORT OF AGAIN IT IS THE SAME INTOXICATION DROEM RECOGNITION PROCESS THAT
IS USED BY DOCTORS CERTAINLY ACROSS THE KUNLY RIEKLY ACROSS THE WORL THIS
PROCESS OF INTOXICATION DROEM RECOGNITION IS ESSENTIALLY UNIVERSALLY ACCEPTED BY THE
MEDICAL COMMUNITY AND IT'S THE SAME PROCESS THAT HAS BEEN APPLIED NOW FOR
LAW ENFORCEMENT, THAT HAS KIEFB COMMUNITY SUPERVISION FOR LIFE BEEN TAL ORD SPIFRL
TO LAW ENFORCEMENT NEEDS AND CAPABILITIES. AND IT'S THE THAT PROCESS THAT
DEMONSTRATES ITS RELIABILITY. CHIEF JUSTICE RABNER: YOU RAISE AN
INTERESTING POINT WITH THE ANALOGY. IF A CASE RELIED ENTIRELY ON A DRE
EVIDENCE, COULD IT SUSTAIN A CONVICTION? SARAH C. HUNT:
YES. CHIEF JUSTICE RABNER: WOULD YOU SUGGEST THAT A DOCTOR
MAKING BEST EFFORTS TO DETERMINE BASED ON WHATEVER INFORMATION IS PRESENTED, THAT
A DOCTOR'S CONCLUSION IS BEYOND A REASONABLE DOUBT? SARAH
C. HUNT: YES IT CAN BE I MEAN. CHIEF JUSTICE RABNER: IT CAN BE
BUT IS IT? SARAH C. HUNT: IT IS SO HARD TO SAY IT IS SO
HARD TO ANSWER THAT QUESTION. BUT YES. YES IT CAN BE IT IS NOT NECESSARILY BUT
IT CERTAINLY CAN BE. AND IT'S THERE IS -- YES THAT IS MY ANSWER.
JUDGE SABATINO: ISN'T IT AND GIST TO A CORRESPONDENCE INNER A CORRESPONDENCE NERS
FINN MIGHT BE DISPUTED BUT COULD BE SUFFICIENT IN TERMS OF DEATH RIGHT.
SARAH C. HUNT: EXACTLY. AND THAT IS WHETHER IT IS A DRE TESTIFYING
OR A DOCTOR OR A CORRESPONDENCE INNER, WHOEVER IT MAYBE, CROSS-EXAMINATION
IS AVAILABLE TO DEFENDANTS. THEY ARE MORE THAN FREE AND OFTEN DO COMMUNITY SUPERVISION
FOR LIFE CHALLENGE AND TRY AND CUT DOWN AN EXPERT'S OPINION DURING
CROSS-EXAMINATION OR BY PRESENTING THEIR OWN CASE WHETHER IT BE THEIR OWN WITNESSES
OR THEIR OWN OTHER FORMS OF EVIDENCE. IT IS NOT THE BE ALL END ALL IN THE
WAY THAT A .08 BAC IS BUT IT IS SUFFICIENT TO ESTABLISH GUILT BEYOND A REASONABLE DOUBT.
CHIEF JUSTICE RABNER: I WAS RAISING IT IN A SLIGHTLY DIFFERENT
CONTEXT BECAUSE A DOCTOR EXAMINING A PATIENT IN AN EMERGENCY SITUATION IS TRYING
TO MAKE THE BEST DECISION THEY CAN ON LIMITED FACTS TO TRY TO SAVE A
PERSON'S LIFE. THEY MAYBE RIGHT, THEY MAYBE DEAD WRONG. DRE EVIDENCE ON THE OTHER HAND
IS PRESENTED I WOULD IMAGINE, THE CONCLUSION IS PRESENTED IN ALL CASES
AS SUFFICIENT PROOF BEYOND A REASONABLE DOUBT. ARE THEY THE SAME? THOSE TWO
SCENARIOS. SARAH C. HUNT: YES AND NO. YES AND NO. DOCTORS
ARE DOCTORS AND LAUM ARE OBVIOUSLY THEY HAVE THEY'RE WORKING WITH A DIRN PURPOSE
THEY ARE WORKING WITH DIFFERENT CONSTRAINTS. DOCTORS DON'T HAVE THE
CONSTITUTIONAL CONSTRAINTS OBVIOUSLY THAT OUR OFFICERS DO. WITH DIFFERENT TIME
FRAMES AND DIFFERENT RESOURCES. BUT THE MOST IMPORTANT THING IS THAT THE PROOS
EAST AND THIS METHODOLOGY IS THE SAME. AND IT'S THAT METHODOLOGY THAT'S RELIABLE.
AND SO YES IT CAN BE PROOF BEYOND A REASONABLE DOUBT. IN THE LAW
ENFORCEMENT CONTEXT OR AND DOCTORS MAY USE IT TO INFORM THERE DECISIONS OR THEY
MAY RECOGNIZE IT FOR SOMEBODY WHO KONLS IN FOR AN UNRECOMMENDED REASON SOMEBODY
MIGHT COME IN A WITH A BROKEN ANKLE AND ALSO BE ON HEROIN. BUT YES I GUESS
IS MY -- MY ANSWER TO THAT. THEY ARE SIMILAR IN A LOT OF WAYS AND THE MOST
IMPORTANT WAYS BUT THERE ARE DIFFERENCES IN COMMUNITY SUPERVISION FOR LIFE
THE PURPOSE OF THE ULTIMATE CONCLUSION. DOUGLAS M. FASCIALE: SO
LET'S FEE BACK TO THE LET'S MAKE BELIEVE WE ARE AT THE MUNICIPAL COURT TRIAL
AND YOU'RE PROSECUTING A CASE AND YOU WRANT TO ADMIT THIS WITNESS AS AN EXPERT
IN DRUG RECOGNITION. DURING THE VOIR DIRE YOU ARE GOING TO FOCUS PRIMARILY ON
THAT INDIVIDUAL'S TRAINING AND SPECIALIZED KNOWLEDGE, RIGHT? SARAH
C. HUNT: YES. DOUGLAS M. FASCIALE: NOT BASED ON ANY
SCIENTIFIC THEORY CORRECT. SARAH C. HUNT: CORRECT.
DOUGLAS M. FASCIALE: SO NO YOU WILL OFFICER THE WITNESS AS AN EXPERT IN DRUG
RECOGNITION BASED SOLELY ON THAT INDIVIDUAL'S TRAINING SPECIALIZED
KNOWLEDGE OF THE PROGRAM. SARAH C. HUNT: YES.
DOUGLAS M. FASCIALE: OKAY IS THERE ANY LIMIT THEN TO THE TESTIMONY THAT THAT
INDIVIDUAL CAN GIVE LIKE WE LOID ON THIS SIDE, ABOUT OPINIONS, FOR INSTANCE
IMPAIRMENT CAN THAT INDIVIDUAL OPINE ABOUT THE LEVEL OF IMPAIRMENT OR WHETHER IN
FACT THE INDIVIDUAL THE DEFENDANT WAS IMPAIRED? SARAH C. HUNT:
YES THEY CAN STILL THEY CAN AS AN EXPERT WITNESS WHETHER IT'S BASED ON ANY
EXPERT WITNESS WHETHER IT IS BASED ON SPECIALIZED KNOWLEDGE OR SIGN IFRNG KNOWLEDGE
CAN TESTIFY BASED ON THAT SPEERN THAT'S WHAT EXPERT TESTIMONY IS SO THE FAX
THAT IT'S BASED ON INSPECTION LIESED KNOWLEDGE AND NOT MILLION DEGREE, SIGN IT IFKS
KNOWLEDGE, DOESN'T MEAN THAT THEY ARE NOT QUALIFIED TO PRESENT THEIR OPINION.
THEY CAN'T PRESENT IT AS IF SPEAKING AS A MEDICAL DOCTOR OBVIOUSLY, THEY ARE
NOT, BUT THEY CAN TESTIFY THAT IN THEIR BASED ON THEIR TRAINING AND INSPECTION
LIESED SPECIALIZED TRAINING AND EXPERIENCE AS A DRE THIS IS THEIR OPINION.
DOUGLAS M. FASCIALE: WHAT WOULD BE THE ULTIMATE OPINION BE?
WHAT WOULD YOU YOU BEEN SEEKING TO ELICIT FROM THAT WITNESS? SARAH
C. HUNT: THAT THE PERSON WAS -- THAT THE DRIVER WAS IMG PARD AND THAT THE IMPAIRMENT
WAS DUE TO DRUGS AND THE SPECIFIC CATEGORY. DOUGLAS M.
FASCIALE: EVEN THOUGH A HYPOTHETICAL THAT AN INDIVIDUAL SMOKED MARIJUANA ON
SUNDAY AND IT SHOWED UP ON THE URINE ON THURSDAY, THERE IS NO BASIS TO OPINE THAT
THE IMPAIRMENT WAS BECAUSE OF THAT INHALATION OF THE MARIJUANA A WEEK EARLIER.
SARAH C. HUNT: I COMMUNITY SUPERVISION FOR LIFE I DISAGREE
RESPECTFULLY WITH THE KIEFRT PREMISE OF THAT AND THAT IS BECAUSE WHEN THE DRE IS
GOING THROUGH THE EVALUATION, ALL OF THE INFORMATION THAT THEY ARE COLLECTING,
WHETHER IT'S KIEFR THE GENERALIZED OBJECTS VALGS EVALUATIONS OR THE SPECIFIC
COMMUNITY SUPERVISION FOR LIFE CLINICAL SIGNS AND SYMPTOMS, ALL OF THOSE WILL POINT
IN THAT CASE WILL POINT TO CAN BUSINESS USE AND IF IT IS NOT IF THEY DON'T
THEN THE DRE WILL NOT OPINE THAT THAT PERSON IS IFRM PARD BASED ON CANNABIS. SO IT'S
WHAT SHOWS UP IN THEIR BLOOD OR URINE LATER DOESN'T INFORM THAT DECISION.
IF THE PERSON EITHER THEY WERE THE DRE IS THEIR OPINION IS WHETHER THAT PERSON
WAS IMPAIRED WHETHER IT IS BASED ON DRUGS AND WHAT DRUG AT THE SPECIFIC
TIME. SO THE FACT THAT THAT DRUG MAY HAVE BEEN IN THEIR SYSTEM BECAUSE THEY USED
IT 5 DAYS AGO AND ALSO YESTERDAY IS NOT DOESN'T MEAN THAT THEIR OPINION
IS LESS RELIABLE. JUDGE SABATINO: SHOULD WE CONFINE THE
EXPERT'S OPINION IF WE ALLOW IT AT ALL, TO THE LIMITATIONS THAT THE PUBLIC DEFENDER
SUGGESTED? FOR EXAMPLE, DON'T SAY IMPAIRMENT, SAY CONSISTENT SEE RATHER
THAN CAUSATION. WHAT WOULD BE UNFAIR ABOUT ^ CON ^ CONNECTICUT STRANGE THE EXPERT
OR THE WITNESS IN THAT FASHION? SARAH C. HUNT: THE UNFAIRNESS
IS THAT THEIR EXPERTISE A LOOSE THEM TO TESTIFY TO MORE THAN THAT.
JUDGE SABATINO: THE COURT FOUND THAT IT HAS NOT BEEN SHOWN THAT IT IS
RELIESHL TO SAY MORE. HALF A LOEFR SOMETIMES IS BETTER THAN NONE. WOULD THE
STATE FEEL LIKE THERE IS NO WAY WE CAN KWIN THEETS CASES NOW BECAUSE THE
EXPERT CAN ONLY SAY CONSISTENT SEE IT CAN'T SAY IMPAIRMENT IS THAT GOING TO TOTALLY
MAKES THESE PEOPLE AS IT WERE WE HEARD UNKWIBLT ABL? SARAH C.
HUNT: NO SORRY I THINK I MISS UNDERSTOOD. SO IF THIS KEERLT COURT FINDS THAT
DRE TESTIMONY KNOW CANNOT BE ADMITTED AS EXPERT TESTIMONY IN LIMIT DRES
TO TESTIFYING THAT SOMETHING THAT THE SIGNS AND SIMMS #2078S AND OBSERVATIONS WERE
CONSISTENT WITH IMPAIRMENT BY A SPECIFIC CATEGORY, I STILL THINK THAT THAT
IS STILL ENOUGH. BUT THE SUGGESTION THAT IF A DRE IS GOING TO TESTIFY THAT THEIR
EVALUATION FINDINGS WERE CONSISTENT WITH A CATEGORY THAN AND THAT THEY LGS
HAVE THO TESTIFY THAT THAT IS AT LEAST AS CONSISTENT WITH OTHER POTENTIAL MEDICAL
CAUSES, IS NAK ACCURATE. AND MS BEYOND THE EXPERTISE OF A DRE. WANL WAYNE
YOUR ADVERSARY SUGGESTS THAT IT KOOB I EAST LISTED ON CROSS WHERE THE DEFENSE COUNSEL
COULD SAY BUT KONTD THAT ALSO BE CONSISTENT WITH DIABETES AND THEN THE
DRE WOULD HAVE TO SAY YES OR NO. SARAH C. HUNT: SO IT IS COMMUNITY
SUPERVISION FOR LIFE YES AND NO. SEE THERE ARE DRES ARE TAUT THAT THERE ARE
CERTAIN SIGNS AND SYMPTOMS AND OBSERVATIONS THAT MAY ALSO THAT MAY ALSO BE
ATTRIBUTABLE TO MEDICAL CAUSES. THEY'RE NOT -- TO SAY THAT ALL OF THEIR FINDINGS
ARE EQUALLY CONSISTENT WITH A DIABETIC EMERGENCY IS NOT SOMETHING THAT I THINK
THAT THEY WOULD BE -- I MEAN IN MOST INSTANCES CERTAINLY IS PROBABLY NOT
SOMETHING THAT THEY WOULD BE ABLE TO TESTIFY TO. GIVEN WHAT IS POTENTIALLY THEIR
LIMTHED KNOWLEDGE OF DIABETIC EMERGENCIES. JUSTICE WAINER APTER:
UNDERSTOOD. SARAH C. HUNT: BUT THEY COULD YES ON CROSS THEY
COULD RESPOND IT IS POTENTIALLY ALSO ^ CON ^ CONNECTICUT SOME OF THE SIGNS ARE
ALSO POTENTIALLY CONSISTENT WITH DIABETIC EMERGENCIES. JUSTICE
WAINER APTER: I THINK IN YOUR ADVERSARY'S FALL BACK THERE WAS ALSO THE RIERNL
THAT ALL 12 STENS OF THE PROTOCOL BE COMPLETED. SO DO I UNDERSTAND FROM
YOUR ANSWER TO JUDGE SABATINO THAT YOU DON'T YOUR FALL BACK COULD BE SIMILAR I
GUESS TO YOUR ADVERSARY WHEN IT COMES TOO THE LIMITATION ON CONSISTENT VERSUS
CAUSED BY BUT WHAT IS YOUR POSITION WHEN IT COMES TO ALL 12 STEPS BEING COMPLETED?
IT DOTSZ THAN LOOK LIKE ALL 12 STEPS WERE EVEN COMPLETED IN THE MATTER
BEFORE US RIGHT IT IR OF THEM. SARAH C. HUNT: CORRECT. NO. IT IS
NOT INTOXICATION COLUMN THE COMPLETION OF STEP 12 SO THE TOXICOLOGY STEP
IS NOT NECESSARY TO THE ADMISSIBILITY OF THE DRE OPINION. JUSTICE
WAINER APTER: ONLY ONE? I THOUGHT IT LOOKED LIKE IN THE CASE BELOW SOME OTHER
STEPS WERE MISSING AS WELL. SARAH C. HUNT: THIS IS SOMETHING
THAT IS THAT THE STATE'S EXPERTS KIEFR EXPLAINED, THAT -- DURING THE COURSE
OF AN EVALUATION IF THERE ARE -- IF THE EVALUATION CAN'T BE COMPLETED IN A MEANINGFUL
WAY, THEN A DRE LIKELY WILL STOP IT OR NOT REACH AN OPINION OR WHATEVER
IT MAY BE. BUT JUST BECAUSE ONE OF THE 3 ^ PULLS ^ PULSE EAST WASN'T TAKEN DOESN'T
MEAN THAT THE EVALUATION AS A WHOLE AND THE OPINION REACHED FROM IT AS A
WHOLE IT IS UNRELIABLE, IT JUST MEANS THAT IT IS ONE OF THE FACTORS TO CONSIDER.
AND THAT'S. JUSTICE PIERRE-LOUIS: HOW MANY STEPS CAN A
DRE NOT USE IN THEIR EVALUATION? AND WHAT IS THE MINIMUM WHAT IS THE STATE'S POSITION
ON THE MINIMUM RIERTD? IF YOUR POSITION IS NOT ALL 12 ARE RIERTD WE KNOW
YOU DON'T THINK STEP 12 IS REQUIRED THE TOXICOLOGY REPORT ON TESTING, BUT WHAT
IS THE STATE'S POSITION ON WHAT THE MINIMUM THAT IS REQUIRED?
SARAH C. HUNT: WE DON'T -- I CAN GIVE YOU A NUMBER ON THIS SPECIFIC NUMBER OF
STEPS THAT HAS TO BE PERFORMED FOR THE DRE OPINION TO BE RELIABLE.
JUSTICE PIERRE-LOUIS: SO IF FIVE STEPS ARE PERFORM IS THAT OKAY IF 3 STEPS ARE
PERFORMED IS THAT OKAY. SARAH C. HUNT: I MEAN, THE FEWER
YOU HAVE THE MORE LIKELY THE ANSWER IS NO. BUT A LINE CAN'T BE DRAWN LIKE
THAT BECAUSE THE WHOLE PURPOSE OF THE EVALUATION AND THE OPINION THAT IS REACHED
BY THE DRE IS A TOTALITY I HAVE OF THEIR EVALUATION THEY TLOO AT ALL OF THE
FEERGS THEY WERE ABLE TO GATHER AND THEY PUT IT TOGETHER TO FORM THEIR OPINION.
SO. JUSTICE PIERRE-LOUIS: YOUR EARLIER ARGUMENT ABOUT THE
PROTOCOLS THAT YOU ARGUED THAT THE ICHL REPLY INDICATION FROM THE DEFENSE THAT
THERE ARE NO STANDARDS IS INCORRECT BECAUSE THERE IS PROTOCOLS, THERE ARE
ALL THESE STEPS, BUT NOW IT SOUNDS LIKE YOU ARE SAYING BUT SOMETIMES THESE STEPS
DON'T REALLY HAVE TO BE TAKEN AND IT'S OKAY IF THEY ARE NOT IT JUST DEPENDS.
SARAH C. HUNT: I MEAN. JUSTICE PIERRE-LOUIS:
THAT WAS YOUR ARGUMENT CORRECT. SARAH C. HUNT: YES BUT IF
I CAN JUST EXPLAIN. THE PROTOCOL IS A STANDARD DICED PROTOCOL. THAT BEING
SAID, EVEN THE PROTOCOL RECOGNIZE EAST THAT THERE ARE CERTAIN STEPS THAT CANNOT
BE THAT MAY NOT BE ABLE TO BE PERFORMED IN EVERY SINGLE CASE BUT THAT DOESN'T
MEAN THAT THE PROTOCOL IS NOT BEING PROPERLY ADMINISTERED. SO IN A SPECIFIC CASE,
FOR EXAMPLE, IT POLITE BE UNSAFE FOR THE SUSPECT TO PERFORM ONE OF THE
PSYCHOPHYSICAL TESTS BECAUSE THEY ARE SO UNSTEADY ON THEIR FEET THAT ASKING THEM
TO STAND ON ONE LEG WOULD CAUSE THEM TO FALL OVER AND HIT THEIR HEAD SO LEAVING
OUT THAT STEP, ISN'T GOING TO ISN'T NECESSARILY GOING TO EFFECT OR LEAVING
OUT THAT ONE COMPONENT OF ONE STEP. CHIEF JUSTICE RABNER:
LET'S FOCUS ON STEP 12. JUDGE LISA ACKNOWLEDGEED THE SHORT FALSE WITH
RESPECT TO TOXICOLOGY TESTING BUT HE FOUND AND I'M QUOTING THAT TOOKS PSYCHOLOGY
RESULTS ARE THE BEST AVAILABLE GOLD STANDARD TO USE IN THIS CONTEXT AND THEY
SERVE AS A REASONABLE PROXY FOR THE CONDITION OF DRUG INDUCED IMPAIRMENT." WHY
SHOULDN'T STEP 12 BE REQUIRED AND WHAT WOULD BE THE IMPACT IF THE COURT SEE
DIRECTED? SARAH C. HUNT: TO TAKE THE FIRST QUESTION FIRST,
STEP 12 IS NOT NECESSARY FOR THE ADMISSIBILITY OF THE DRE OPINION BECAUSE THE DRES
OPINION IS BASED ON THEIR EVALUATION WHICH IS FORMED WHICH IS BASED ON STEPS
ONE THROUGH TEN AND FORMED AT STEP 11. SO THE TOKTS PSYCHOLOGY RESULTS THE TOXICOLOGY
OFTEN THE SAMPLE ISN'T EVEN TAKEN UNTIL THE EVALUATION HAS ALREADY COMPLETED.
THE RESULTS CERTAINLY AREN'T BACK BEFORE THE EVALUATION IS COMPLETED AND THE DRE
HAS REACHED THEIR OPINION. AND IT'S NOT PART OF THE DRES' OPINION. SO
THERE IS NO WHEN THE QUESTION IS WHETHER THE DRES' OPINION IS RELIABLE. THAT IS
THE OPINION THAT IS FORMED AT STEP 11. TOXICOLOGY IS CERTAINLY SOMETHING
THE STATE WOULD LIKE TO HAVE THAT WE WOULD ADMIT IF WE HAD IT BUT IT'S NOT NECESSARY
TO THE RELIABILITY OF THE DRE OPINION. WHAT IT IS HELPFUL FOR IN THIS HEARING
AND COMMUNITY SUPERVISION FOR LIFE MORE BROADLY WAS AS A PROXY FOR TESTING THE
RELIABILITY OF THE PROTOCOL BUT ONCE THAT RELIABILITY HAS BEEN RECOGNIZED
AS IT WAS HERE, TOXICOLOGY ISN'T NECESSARY TO THE RELIABILITY OF A SPECIFIC DRE
OPINION IN A SPECIFIC CASE. SO NO, THE ADMISSIBILITY DOES NOT DEPEND ON
THE AVAILABILITY OF TOXICOLOGY RESULTS. CHIEF JUSTICE RABNER: AND
IF THE COURT DIDN'T ACCEPT THE ARGUMENT WHAT WOULD BE THE IMPACT IF IT DREKTD
THAT STEP 12 MUST BE INCLUDED? SARAH C. HUNT: I GUESS IT DEPENDS
ON THE EXACT NATURE OF THE OPINION. IF THE DRE IS STILL ABLE TO TESTIFY
TO ALL OF THEIR OBSERVATIONS AND THAT WHAT THEY OBSERVED IS CONSISTENT WITH A SPECIFIC
CATEGORY OF DRUGS, THEN THE ABSENCE OF TOXICOLOGY IS NOT IDEAL BUT CERTAINLY
LESS HARMFUL. BUT IF A DRE IS NOT ALLOWED TO TESTIFY TO ANY OF THEIR EVALUATION,
TO ANY OF THE OPINIONS FORMED, ANY OF THE OBSERVATIONS MADE UNLESS TOXICOLOGY
IS PRESENT, THAT WOULD FRANKLY DEVASTATE DRUG IMPAIRED DROOIFG IN THIS STATE.
IT WOULD BE INCREDIBLY I MEAN THAT IS NOT TO SAY THAT WE WOULDN'T BE ABLE
TO PROVE GUILT BEYOND A REASONABLE DOUBT, CERTAINLY, BUT IT WOULD BE VERY HARMFUL
TO EXCLUDE ALL DRE TESTIMONY UNLESS THERE IS INTOXICATION TOLL GEE IFRM
SO EXPLAIN WHY. WHAT WOULD THE IMPACT BE? WHY WOULD THAT HARM BEFALL THE STATE.
SARAH C. HUNT: BECAUSE IT WOULD MAKE IT QUITE DIFFICULT FOR THE
STATE TO PROVE THE CAUSE OF IMPAIRMENT. IF THE DRE IS NOT ALLOWED TO.
CHIEF JUSTICE RABNER: ARE YOU TELLING US YOU COULDN'T DO THE TEST? I'M TRYING
TO FIGURE OUT WHAT YOUR HESITATION IS. SARAH C. HUNT: I AM SORRY
I DON'T THINK. JUSTICE WAINER APTER: WHEN WOULD TEXT PSYCHOLOGY
NOT BE PRESENT WHY COULDN'T YOU JUST GO AHEAD AND DO STEP 12 I THINK IS WHAT THE
CHIEF IS ASKING. CHIEF JUSTICE RABNER: IF THE COURT SAYS
STEP 12 IS REQUIRED. SARAH C. HUNT: YES.
CHIEF JUSTICE RABNER: COULD THE STATE ABIDE BY THAT. SARAH C.
HUNT: OH I AM SORRY I MISS UNDERSTOOD. WE COULD TRY, YES. AND TOXICOLOGY IS
REQUESTED IN EVERY CASE BUT IT CAN'T -- THERE ARE ISSUES WITH GETTING IT
THERE ARE TIMES WHERE A SUS PESHTH IS UNABLE TO PROVIDE A SAMPLE SPECIFICALLY IN
THE CONTEXT OF URINE, THERE ARE CASES WHERE EVEN WHEN THE STATE HAS A
WARRANT THE HOSPITAL IS NOT WILLING TO COOPERATE WITH THAT WARRANT, AND CERTAINLY
IF TOXICOLOGY WAS REQUIRED FOR DRE EVIDENCE TO BE ADMISSIBLE, THAT WOULD
LEAD TO AN I NORM US INFLUX OF TELEPHONIC WARRANTS FOR BLOOD DRAWS WHICH WOULD
OVERWHELM BOTH KIEFT COURT SYSTEM AND THE HOSPITAL SYSTEM AS WELL IF EVERY
TIME WE NEEDED TO PROVE DRUG IMPAIRED DRIVING WE HAD TO CALL IN FOR A WARRANT AND
HAD TO BRING A PERSON TO A HOSPITAL FOR A BLOOD WARRANT IF WE COULDN'T GET
IT BY CONSENT. DOUGLAS M. FASCIALE: I HATE TO GO BACK TO THIS
SHTHS BUT EARLIER DID YOU SAY THAT THE PROPOSED TESTIMONY IS NOT SCIENTIFIC IN
NATURE BUT RATHER BASED ON OBSERVATION SZ AND SPENGS LIESED TRAINING AND
KNOWLEDGE. SARAH C. HUNT: YES. IT IS NOT SCIENTIFIC IT IS
SPECIALIZED EXPERT FAK FABLG DAL BERTH FROM THE OUT SEAT TRIAL JUDGES HAVE TO DETERMINE
WHETHER THE PROPOSED EXPERT IS GOING TO TESTIFY AS TO SCIENTIFIC KNOWLEDGE.
YOU ARE SAYING THIS HAS NOTHING TO DO WITH SCIENTIFIC KNOWLEDGE, IT IS JUST ABOUT
OBSERVATION, SPECIALIZED TRAINING. SARAH C. HUNT: WELL SO
DAL BERTH LIMITED ITSELF TO SCIENTIFIC KNOWLEDGE BECAUSE THAT WAS THE ISSUE
BEFORE IT BUT IN IT KIEFR EXPANDED DAL BERTH TO ALL FORMS OF EXPERT TESTIMONY.
RECOGNIZING THAT IT IS THE WORD KNOWLEDGE THAT REQUIRES RELY BIMENT AND NOT THE
COMMUNITY SUPERVISION FOR LIFE NOT SCIENTIFIC OR SPECIALIZED KNOWLEDGE. NOT THE
QUALIFY FIRES OF THAT KNOWLEDGE MAYOR. JUSTICE WAINER APTER:
DO YOU DISAGREE WITH AUM OTHER STATES THAT THAT COULD BE ADMITTED AS FACT
TESTIMONY OR LAY PIFRN TESTIMONY AND THERE TOSS THAN THE NEED TO BE A DAMG BERTH
OPINION AT ALL IT IS SPECIALIZED JURY UNDER THAT STATES LAW THEY DON'T
REQUIRE A DAL BERTH ANALYSIS? SARAH C. HUNT: YES AND NO. IT'S NOT
THE STATE RECOGNIZES THAT IT HAS BEEN SEEN AS EXPERT TESTIMONY IN SEVERAL
STATES. CERTAINLY IF THIS COURT RECOGNIZES THAT IT CAN BE BROUGHT IN BY LAY
OPINION TESTIMONY, THE STATE WOULD NOT HAVE AN ISSUE WITH THAT, IT COULD
STILL BE LAY OPINION TESTIMONY. AS LONG AS BECAUSE IT IS STILL THEIR OPINION TESTIMONY.
BUT WE RECOGNIZE THAT JUDGE LISA ANALYZED IT AS EXPERT TESTIMONY FIRST BECAUSE
IT WAS COMMUNITY SUPERVISION FOR LIFE UNDER THE FRY PAR DIME BUT BECAUSE SOME OF
THE STEPS ARE SCIENTIFIC IT SHOULD BE AND LIGHTSED AS A WHOLE AS A SCIENTIFIC
METHODOLOGY SO WE APPRECIATE THAT AND I DON'T THINK THAT THAT HARMS IT IN ANY WAY.
JUDGE SABATINO: IF WE WENT DOWN THAT ROAD AND DESCRIBED THIS
AS NON EXPERT BUT ADMISSIBLE TESTIMONY, CAN I PRESUME THE STATE WOULD HAVE NO
PROBLEM WITH CONTINUING TO PROVIDE E KWIFRL ENLTD DISCOVERY, WRITTEN DOUGS
OF THE PROTOCOL HOW IT WAS ADMINISTERED THE SAME INFORMATION THAT THEY WOULD BE
GETTING NOW IF THEY WERE DESCRIBE AS EXPERTS IT THE STATE KWO HAVE NO
PROBLEM ABIDE GOES BY THE SAME DISCOVERY THAT THEY ARE ALREADY FURNISHING UNDER
THE PRIM EAST THAT IT IS EXPERT TESTIMONY RIGHT. SARAH C. HUNT:
I WOULD IMAGINE IT WOULD LARGELY BE THE SAME SORT OF DISCOVERY THAT IS TURNDZ
OVER. I CAN'T OFF THE TOP OF MY HEAD THIFR ANYTHING THAT WOULD BE DIFFERENT
BUT I AM NOT CONFIDENT ENOUGH IN THAT ANSWER. JUDGE SABATINO:
IN ANOTHER RELATED THING IF WE ADMITTED IT ALLOW IT TO BE ADMISSIBLE IN JURY
CASES WOULD THE STATE HAVE ANY PROBLEM WITH AS WE HAVE HAD SINCE HENDER SON PERHAPS
HAVING SPECIAL INSTRUCTION TO THE JURY ABOUT UNION COUNTY EXPLAINING WHAT THEY
ARE GOING TO HEAR, WHAT THE LIMITATIONS ARE, FOR EXAMPLE, MAYBE IT WOULD
SAY THE EXPERTS NOT GOING TO TELL YOU THE LEVEL OF IMPAIRMENT OR THE CAUSE OF
IMPAIRMENT BUT MAY PROVIDE YOU WITH AN OPINION ABOUT ET CETERA, MAYBE
CONSTRAINTS ON WHAT LAWYERS CAN SAY IN CLOSING ARGUMENT, ALL THOSE A SOESHTHSED
THINTHS THAT WE WOULD BE EVEN MORE CONCERNED ABOUT PERHAPS WITH A JURY I TAKE
THE THE STATE WOULD NOT RESIST RIGHT. SARAH C. HUNT: I THINK
MOST OF THOSE SORTS OF PROCEDURAL PROTOCOLS ARE ALREADY IN PLACE FOR
EXPERT TESTIMONY SO I DON'T KNOW THAT THERE IS ANYTHING SPECIFIC ADDITIONAL THAT
WOULD BE REQUIRED WHEN IT'S DRE EXPERT TESTIMONY VERSUS ANY OTHER SORT OF EXPERT
TESTIMONY. I THINK I JUST DON'T HAVE ENOUGH INFORMATION RIGHT NOW TO
COMMUNITY SUPERVISION FOR LIFE BE ABLE TO SAY THAT BUT I WOULD IMAGINE CONCEPTUALLY
THE SAME PROTOCOLS THAT APPLY WITH ANY OTHER SORD OF EXPERT TESTIMONY WOULD
APPLY EQUALLY TO THIS FORM OF EXPERT TESTIMONY. JUSTICE
WAINER APTER: ARE DRE EVALUATIONS CURRENTLY RECORDED EITHER ON BODY WORN
CAMERAS OR IN SOME OTHER WAY? SARAH C. HUNT: SO THE THE I
CREDIT P DOES NOT REQUIRE IT SPIFRL I THINK IN NEW JERSEY GIVEN THAT MOST
OFFICERS WHERE BODY WORN CAMERAS I BELIEVE THAT MOST -- ACTUALLY I AM IN THE'
NOT SURE IF EVERY SINGLE ONE IS RECORDED. THEY ARE DONE AT A STATION HOUSE AND
OFTEN NOT BY AN OFFICER BY AN OFFICER WHO'S NOT NECESSARILY ON PATROL DUTY
BUT THEY ARE AT TIMES. JUSTICE WAINER APTER: THE BAR ASSOCIATION
RECOMMENDS THAT THEY BE RECORDED DO YOU OBJECT TO RECORDING THEM?
SARAH C. HUNT: WE DON'T OBJECT TO RECORDING THEM I THINK BUT THERE ARE
-- I CAN'T SPEAK TO WHETHER A RECORDING REQUIREMENT IS NECESSARILY APPROPRIATE
GIVEN THE LIMIT ANGSS THAT MAY BE IN PLACE IN A GIVEN CASE AND CERTAINLY IF THE
FAILURE TO RECORD OR ABSENCE OF A RECORDING BEING DISPOSITIVE OF THE
ADMISSIBILITY. CHIEF JUSTICE RABNER: ANY OTHER QUESTIONS ANYONE?
IS THERE ANYTHING YOU WOULD LIKE TO ADD WE KNOW YOU EVER BEEN ON YOUR FEET A WHILE.
SARAH C. HUNT: I DON'T HAVE ANYTHING TO ADD WE WERE JUST
WOULD JUST ASK IN KEERT TO ADOPT THE SPECIAL MASTER'S INCREDIBLY THOROUGH FIERND
GOES AND TO REACH THE SAME RESULT THAT THE DRE TESTIMONY EXPERT TESTIMONY
IS ADMISSIBLE IS RELIABLE AND AS ADMISSIBLE IFRM THANK YOU IF YOU TO ALL COUNSEL
FOR THE VERY HEFRL ARGUMENTS. A SPECIAL THANK YOU TO JUDGE LISA I DON'T KNOW
IF HE IS LISTENING BUT WE A PRESHG HIS HOIK LANL EVERY FOORTS NOT ONCE BUT TWICE