There is no breath machine for drugs. When the State charges someone with driving under the influence of a drug rather than alcohol, it usually leans on an officer called a Drug Recognition Expert — a DRE — who performs a structured, 12-step evaluation and then offers an opinion about what category of drug caused the impairment.
Most people never see that evaluation happen to them in any meaningful sense. They were arrested, brought to a station, walked through a long series of odd little tests by an officer who did not explain what any of it was for, and then handed paperwork. Months later, that officer’s report becomes the centerpiece of the case against them.
So here is what those steps actually are, in order, and where the pressure points sit.
The 12 steps, one by one
- 1. Breath alcohol test. The starting point. If the breath result does not explain the impairment the officer says they saw, the DRE process is what fills that gap.
- 2. Interview of the arresting officer. The DRE talks to the officer who stopped you before evaluating you. That order matters — the evaluation does not begin from a blank slate.
- 3. Preliminary examination and first pulse. General questions, a look at the eyes, and the first of three pulse readings.
- 4. Eye examinations. Horizontal gaze nystagmus, vertical gaze nystagmus, and a check for lack of convergence.
- 5. Divided attention psychophysical tests. The modified Romberg balance test, walk and turn, one leg stand, and finger to nose.
- 6. Vital signs and second pulse. Blood pressure, body temperature, pulse.
- 7. Dark room examinations. Pupil size measured under different lighting conditions, plus examination of the nasal and oral cavities.
- 8. Examination of muscle tone. Whether muscles are rigid or flaccid.
- 9. Check for injection sites, and third pulse.
- 10. Subject’s statements and other observations. Anything you said, and anything else the officer decided to write down.
- 11. Analysis and opinion of the evaluator. The officer’s conclusion about impairment and drug category.
- 12. Toxicological examination. A blood or urine sample sent for testing.
Notice that eleven of the twelve steps are observation and opinion. Only the last one produces an independent lab result — and it comes after the officer has already formed and written down a conclusion.
What Olenowski changed
The fight over DRE testimony ran through the New Jersey courts for years. The Supreme Court’s 2023 decision in State v. Olenowski resolved it two ways at once. First, it adopted a Daubert-style reliability standard for expert testimony in criminal and quasi-criminal cases — which includes DWI cases in municipal court. Second, applying that standard, it held DRE testimony sufficiently reliable to be admitted, subject to conditions.
The conditions are the part that matters to a defense. A DRE is permitted to testify that a driver’s observed condition is consistent with the effects of a category of drug. A DRE is not licensed to declare, as scientific fact, that a particular drug is what made a particular person impaired. And the opinion is not supposed to stand alone — it is tied to toxicological confirmation.
Where these cases actually get won or lost
A drug DWI defense is rarely one dramatic moment. It is usually the accumulation of gaps:
- Was the full protocol done, in order? Twelve steps means twelve steps. Skipped or abbreviated steps go directly to the weight of the opinion.
- Is the paperwork complete? The DRE face sheet, the rolling log, the narrative, the certification and recertification records of the officer.
- Does the toxicology match the opinion? If the officer called one drug category and the lab shows something else — or shows nothing — that is a serious problem for the State.
- Presence versus impairment. A lab result showing a substance in your system is not, by itself, proof you were impaired while driving. This is the same weakness that runs through prescription drug DWI cases.
- Are there innocent explanations? Fatigue, illness, injury, anxiety, a medical condition, or a language barrier can all produce the exact observations logged as “signs of impairment.”
The same tests that appear inside the DRE protocol also appear on the roadside, and they carry the same vulnerabilities there — see our breakdown of NJ field sobriety tests. And if cannabis is what is at issue in your case, start with marijuana DWI charges in New Jersey.
What we do with these
We request the complete DRE file, not the summary — the face sheet, the log, the officer’s training and certification history, and the full toxicology package with the underlying data. Then we compare what the protocol requires against what was actually performed and recorded, and we hold the testimony to the boundaries the Supreme Court drew around it.
A drug DWI conviction in New Jersey carries the same license consequences as an alcohol case. That is not a charge to walk into alone with a checklist you have never read.
Charged with a drug DWI in New Jersey? Call Goldman Law Firm at 908-692-7745 for a free consultation. See our NJ DUI and DWI defense page.