Atlantic City Criminal Defense
March 27, 2023

NJ DUI Lawyer Chris Baxter 🚨

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Melissa Rosenblumwelcomes criminal defense attorney, Chris Baxter,to Mighty MERP!

Chris is experienced with DUI in jurisdictions across New Jersey. They discussState v Olenowski, Drug Recognition Examiners,andadmissibility.


Custom AI - Chris Baxter Episode Art:

Create a photorealistic oil painting of a classic 1959 Cadillac being pulled over by police. Create in the style of Andy Warhol. Use MERP pink #f11286 as the primary color in the painting.

(It would seem the AI skipped the middle-man and gave the Caddy' police lights in order to pull itself over.)



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Welcome back to the Mighty Merp podcast. I'm here today with Chris Baxter, who is an attorney, handles criminal defense work, and I'm going to say specializes in DUI. And Chris is here today to talk about the new Supreme Court decision that does affect DUI cases in New Jersey. Welcome, Chris.  Hi, Melissa. Great to see you. Thanks for having me. Oh, it's my pleasure. Great to see you. And the half bear behind you, is that a bear? Former prosecutor there.  Before we jump into DUI law, Chris, tell me a little bit about your background and how long you've been practicing. Maybe a little origin story of Chris Baxter. 1s Sure, sure, my pleasure. So grew up in South Jersey and went away to school in Boston. Boston College, enjoyed it, loved the city, great place, a lot of culture. Came back home Rutgers Law School and then started my own practice in 1995. Started out in the city working for a large firm and then eventually went out on my own in 1995. I've been a municipal prosecutor in many of the jurisdictions in Burlington County. That was about an eleven year gig for Melissa and then out solely doing criminal defense and DWI defense since then as a solo practitioner. Did you go to law school knowing you wanted criminal law? 2s No, I didn't. I knew I wanted to be a litigator. I enjoyed litigating. I knew I was not going to be one of these people that went to sit in a room and review real estate documents or bankruptcy type materials. I think I would have fallen asleep. So this is good. Keeps me on my toes. And it's as close as you can get to a battle as being in the courtroom. Yeah, as I say, it's never boring. That's one thing about handling criminal matters. 1s Funny that you mentioned Boston College today because my youngest, who was accepted into many good schools, just found out yesterday that he was not accepted into Boston College. So boo. 1s Well, they clearly have raised their standards because I snuck in. There you go. So. 2s Tell me, tell me. Generally, 1s this podcast is for lawyers, but it's also for non lawyers. So 2s what's the general DUI law? I know we're going to jump into Olinowski in a few minutes, and we're going to hopefully go very detailed about that decision. But 1s generally, what is a law in New Jersey about Duis? 1s And then we'll kind of zoom in on the supreme Court decision that just came out. Okay, good place to start. So New Jersey, like all the states in the country, has statutes, rules that prohibit you from driving a vehicle in an impaired state. And the impairment can be from alcohol. It can be from drugs of abuse. It can be from even prescription medicine, even if you've taken that medicine in a dose that your doctor recommends. So it's the impairment behind the wheel that the government really wants to avoid in the context of a plain vanilla it's called a plain vanilla alcohol case. The state needs to show the impairment, and they have two ways to do that. They can show a blood alcohol level of 0.8 or higher, which our government says it doesn't matter whether you feel drunk or feel buzzed or any of those things. That is legal impairment. And that's based on the science that says you start to lose motor skills at above about an five, really. And in the absence of an actual reading, the government can still pursue a prosecution for DWI in an alcohol case by using general roadside observations and the totality of what the officers may have seen. And then the officer testifies about those and can offer an opinion as to the state of the defendant's impairment or lack of impairment. And if they say they're impaired, the judge could buy into that and convict on a DWI charge, even in the absence of a BAC reading. Right. 2s I think what most people consider when they think of DWIS or Duis, the alcohol consumption. 1s That's true. That's the most for for a long time, that's been the one that's been out there the most. We're seeing many, many more drug cases, I'm sure, in your practice and mine as well, they're out there. Right. And so when we talk about police officers opinions, it's based on smell and the ability to complete field sobriety tests and. 2s And why do you think the reasoning is that even without a reading, officers testimony about their observations with regards to alcohol intoxication is sufficient? That's a really good question, Melissa. So I think it's because alcohol is considered so ubiquitous. I mean, anybody who is of the age of majority, a competent witness who can testify has probably seen somebody who's intoxicated from alcohol. So the law basically says, number one, any human being can get on the witness stand and say what they saw. That's just observations. It was raining, it wasn't raining, it was cloudy, he fell down when he was trying to hold his balance. All those are just routine observations. The opinion as to intoxication almost always comes from the police officer involved. But it doesn't have to. It could be a scenario where the officer who administered the balance test is called up to active duty. He or she is now in the military, and somebody who just happened to make a cell phone call watching the balance test could come in and testify not only on what they saw, but the opinion of impairment because it's such a common impairing thing that's out there different than correct. And I always give this example. 1s I have usually college students review the videos of DUI cases for me. I have them write memos and they timestamp it. So they are very specific with the details of what they're observing from a very 1s play by play, just explaining what's on the video. And then I have them write opinion. And 1s their opinion is the same idea. This person appeared extremely intoxicated. This person did not appear just based on their common knowledge. They're college students, so they are aware of intoxicated individuals. Right. 2s Sure. And everybody's qualified to render the opinion on that. So how is that different? Or we all agree that when you see someone intoxicated, you know they're intoxicated whether you're an expert or not. How is that different than DUI cases that involve prescription drugs or controlled dangerous substance, which is anything from marijuana correct, to any other drug cocaine, heroin, meth, whatever is the other altering intoxicant? So the big difference is the opinion. Again, alcohol case. Anybody a layperson can render the ultimate opinion that convicts a defendant in the context of a drug DWI case. The effects that drugs have on your body and what your body does to process or metabolize those drugs are so nuanced and so sophisticated compared to alcohol that our law says that that is a delicate opinion that requires some expertise. And the traditional way, if you wanted to really nail down all four corners, a prosecutor would have a toxicologist come in, evaluate either the blood or the urine, plus the roadside observations, and render opinion on that. And that's about what you need. So you'll need some form of expert or quasi expert opinion, some observations of impairment, and then toxicology to corroborate what the people are saying on the witness stand. Okay, so it's a heavier lift for sure, right? Harder cases, fair to say, harder cases for the state to prove. 2s Correct? Very much so. 1s Olinowski addresses the experts that are utilized in the case. But prior to the Supreme Court decision, prior to this case being litigated, which went from the trial to the appellate to the Supreme Court, what was our understanding of expert witnesses in drug cases? I'm going to say just drug cases, whether they're illegal or illegal drugs. Right. So I think there's two phases to that. Melissa? It's a good question. You have the early days and I would say that would be in the where really the only people that would be qualified to do that would be toxicologists that were hired, or the medical doctors, for instance. Some of them you might see in emergency rooms and other professional settings. And the problem with that scenario was it's very difficult in a routine DUI to get a toxicologist to come in at the state's expense. In the context of using medical doctors, you're going to run into some confrontation clause or constitutional issues. You're sure you're well aware of that? Every defendant has the right to confront their accusers, including people who are rendering opinions about their level of impairment. So it would be difficult to get these doctors that work in hospitals to come in off duty, off shift and participate in this. And in addition, this speaks really to our lack of experience in the even some of the these types of doctors, these schooled trained doctors were really not that astute at providing medical opinions on impairment at street level drug doses. They just weren't. It's a lot different now in the, in the with our opioid crisis. But back then it was a different story. So in reaction to this sort of lack of experts, a couple of very ambitious Los Angeles police officers got together and compiled materials, studied everything they could possibly get their hands on, and created a program to try and empower law enforcement officers to be this sort of in between expert to fill in the gap. Drug recognition evaluators. Dre. So drug recognition evaluators. And after I say it now, I'm just going to say Dre, 3s which is a Dre experts. Are they medical personnel, just so we're clear, law enforcement personnel? Or can they be either 1s who are really the dre experts that are being utilized raised. 2s Dres are all law enforcement officers that take some specialized training. 1s So it's completely outside the medical community, and it's to fill in that gap. You're in a fluid situation. Somebody's arrested for DWI, they appear to be impaired. They're arrested, brought to the station. They get on whatever, the breath machine that you're using in your state, and there's a zero zero on the box. So no alcohol that's been out, but they're still acting impaired. That's where if you don't have a medical doctor in your police station, that's where the dre would come in. That's sort of why they were. And what's the extent of the training of a Dre expert? So the base training, Melissa, is you have to take our traditional standardized field sobriety testing course, or SFST course, have to be competent and up to speed on that. After that, you take a drug recognition evaluator for Dre program, which is initially about 56 hours of classwork, and then you go outside of the class and do actual evaluations, and then you come back and do more pharmacology type of education. So it's a long course, a lot of work involved. The clinical pieces are interesting. The evaluators will take the trainees to known drug areas, for instance, down in South Jersey. Camden can be an area that's often associated with that. And there'll be certain pockets where people will be more inclined to use opioids versus methamphetamines or some type of stimulant, and they'll take them to these spots and get the people that are there, the users, to agree. And they'll usually have to buy them some food, and they'll allow the law enforcement officers in training to do the Iotian, say, okay, that's what a stimulant looks like. That's what an opioid looks like when somebody's under the influence of it. And that's how they learn. 1s So 1s in the end, they possess the ability to tell the difference if somebody is on marijuana versus somebody is on an opioid, 1s or the distinction of the drugs they try. Yeah. So the program breaks the drugs down into seven categories. Marijuana, as you mentioned, CNS depressants, narcotic analgesics, stimulants, hallucinogenics, the types of things that you normally would see things categorized, and the dre's responsibility after they do their twelve step exam is to render an opinion if they're under the influence of a drug, and if so, which category or categories does it fit into? They don't have to specify that it's heroin. They have to say CNS depressant, they don't have to specify that it's an opioid. They can say a narcotic analgesic. So that's kind of how marijuana is its own freestanding category because it's such a wonky drug to evaluate, which is actually one of the reasons why there was probably such a delay in legalizing it, is how do we address it in this type of offense? 1s So let me ask you this. 4s And just so it's clear to anyone listening or watching. So, Dre experts were accepted in New Jersey for a long time, correct? 1s They were. And it was almost on an implied basis, task acceptance. Somebody would testify in a trial, and nobody really raised the issue as to whether this entire program was scientifically reliable. I mean, do these opinions get across that that minimum threshold required to be considered truth at a trial? Right. And sort of people ignored that for a long time, and then finally, there was a challenge. 2s Now I'm being really nerdy, but when you say it was not scientifically challenged, I know what you mean legally, and I know what the standard is. But can you kind of explain what that's meant for maybe non lawyers who are interested in the law? Why does it need to be scientific? What's the admissibility issues when we sort of address that component of an expert generally? Sure. Yeah. Another good question. So, all the things we're used to using in a forensic or a court setting can be the common things like observations. They just are what they are. But when it comes to science, it's always a developing field. So you'll have things that are time tested and have been around for 70, 8100 years, and then you'll have things that are new or novel, as we say in the law. And if it's new or novel and somebody's trying to use it in a court of law, there needs to be some determination at a judicial level, whether it's admissible or not admissible into that new or novel standard. So in the context of dre, with the stuff that they use to analyze defendants, there can be a challenge to that. And there's sort of three views across the country on dres, whether they're admissible or not right now. Okay, and what are the I'm just curious. Now, I got to ask. You said three views. What are the three views? Yeah. Thanks. 2s Yeah. So the three views, so there's one view which is very extreme. We call that the brightful view. And that comes out of a county in Maryland and the lead defendant was Brightful. But a number of cases were consolidated, well funded litigation for both the state and the defense experts were brought in from around the country who were really on top of their game in this. And they all testified and that county court came out and said, this is junk, it's not reliable. The efficacy is too low to be used. It may be newer, novel, but it doesn't pass that muster that we would allow it to be thrown into evidence. It's just too low of an efficacy or ability to be accurate in its determination. So that was blowing the whole program out of the water. Limited to one county in Maryland. So it didn't really have any precedential value nationwide. Pretty much saying it's not scientific though, correct? Right. Exactly. And when you talk about Jersey, we'll come back to that Brightful case in a minute. Then there is what I would call the western view. So Oregon and Washington are states where they've had some minor form of a reliability hearing, like in the Brightful one, and said, look, we're going to sort of cafeteria shop this. Some of these components are reliable and some are not. So we'll allow the Dre to testify, but it's conditional. They have to testify and have done every single step of this twelve step process. In addition, the toxicology has to be there and has to be corroborative. So if they don't get blood or urine, if they missed one of the twelve steps, the Dre goes down the tubes under that what I would call the western view. And then you have the majority view. And that sort of comes out of an opinion in Florida, but it's accepted in many estates in the country that basically say you don't even need a scientific reliability hearing. This is basically common stuff, cloaked in scientific garb, making somebody stand on one leg, making their touch, their fingers and they're taking their pulse. All these things aren't really scientific. They're just cloaked in science. So you can testify, but you're going to testify as a status of a layperson, not as an expert. So that may in the eyes of a jury they and say, well, is this just somebody running their mouth or is this an expert in the field? And it makes a difference in how the opinion is weighted. And that's the majority of you right now in the country. Right. Which is interesting because. 2s I think that those type of decisions are written by individuals that have never tried to take the field sobriety test sober or intoxicated, 1s because I think that the tests are 1s there's no baseline of whether an individual could successfully complete it 1s prior to when they're taking it, usually late at night in the dark. 2s It's a really good point. 2s Just so we're clear, before the Olinowski decision, are you saying no one in New Jersey challenged Dr. E? It was never challenged whether it was scientific and whether it should be admissible at all. 1s So if you raise the challenge, more often than not, the prosecutors would sort of back down because it was such a cumbersome, chunky process, and they would just sort of stay away from it and try and resolve the case in a way that didn't require that testimony. That was really the fix in the short term. We do have one unreported appellate division case which talks about it and says, hey, this program is good. But as you know, as a sharp criminal defense lawyer, unreported appellate Division cases don't carry any precedential value. So we didn't have anything that anybody could point to with authority in New Jersey. We were sort of a black hole in there. Right. And the truth is that Duis in New Jersey different than a lot of states. They're not criminal. I always say they are quasi criminal because they have some potential ramifications of jail time, but they don't end up on your record. We don't have a right to a jury trial. They're in municipal court. 3s You know, municipal court has a high volume of cases. So in the end, so many cases, probably 98% to 99% of cases, are resolved by some sort of plea bargain. 2s Right. And that was sort of just the end the workaround until somebody got up the mustard to make a reliability challenge that the court would actually say, hey, time to take this up and look at it. Okay, so can you give a little history on Olinowski and sort of the procedural history? That's our nerdy legal way of saying, how did it start and how did it go through the court system? Yeah, it's a perfect segue from what we're talking about. So there's a gentleman named Olivowski I forget the jurisdiction where he was charged, but two separate Duis involving drugs only, not alcohol. And on both of those, he went to trial in the Municipal Court lost Law Division, which is your first level of appeal, and lost and ultimately went to the Appellate Division, consolidated both his cases. In both of the cases, the Dre was used to form an opinion that ultimately led to his prosecution and conviction. So they have the cases. The Appellate Division looks at this and says that it's a reliable program, that it's everywhere. Now it's in 45 states in the country, therefore must be reliable and sort of runs with a very I would call a shaky opinion, but an Appellate Division opinion that became published. Now, there is a committee that determines whether something gets published or not. So when they say it's going to get published now, we have something of presidential value. And I'm sure that was not an accident. We were on the throes of legalizing marijuana. We didn't have a Dre program with a big rubber stamp on it from any court. So I think that had a lot to do with forcing this out into the open. So the case comes out. The appellate Division says yes, we agree 100%. The Dre program is good to go. And obviously the defense of reacts to that, takes a petition to our Jersey Supreme Court, which is how you appeal there. And the Supreme Court says, yes, we're up for this challenge. We want to take a look at this now. So Jersey picks up the gauntlet and decides to run with it. 1s Right. And so 1s pretty much stopped the Dre cases in New Jersey for quite a while as we all sat waiting to see what the Supreme Court was going to do with Dre experts. So what did the Supreme Court do in Olinowski with the Re experts? Yeah, it's good. So they could have just taken that case only and looked at it and said, we'll make a decision on these facts and these facts alone. But I think that our Supreme Court learned its lesson from when they brought in the Alco test 71 ten back in the early two thousand s. It became a patchwork litigation. And to stop that, they took a bunch of cases up and said, we're going to appoint a retired judge, let he or she conduct some hearings on this at length so that we don't have to do the work. They can render a report. We'll call them a special master because they're sort of a judge. And at the end of the day, we'll look at the special master report and decide, yay or nay, whether we're going to admit them. And that's what they did with Alcotest. And they decided to take that very same approach with Dr. E they appointed a special master Judge Lisa, and at that point, everybody would jumped in. The state public defender's office, the Attorney General's office, and amicus different groups that are interested in an outcome in this case jumped in as well. And there was hearings over about a year and a half or so and testimony from experts. Again, very well funded litigation, much like the one in that Maryland Brightful case, except this one had much more stature because we knew at the end of the day the Jersey Supreme Court was going to make a decision one way or another on this. So really all eyes in the country are on this litigation right now in Jersey. Okay, so what's happening with the Re case is right now. 2s Yeah. So in the interim, that was a long delay, and every county and every judge really treated it differently. For instance, would be in Bergen County. The assignment judge there made a ruling that any dre cases that were in the pipeline were stayed or frozen, essentially until the outcome of this Olinowski litigation. And other jurisdictions don't do that. You can forge ahead and make your own challenge, or you can just try it without the dre. But every jurisdiction is handling different. The AG's office wanted to stay on everything statewide, and they actually petitioned the Supreme Court and asked for that and lost. So what we have is Bergen saying, stop everything, and every other jurisdiction doing whatever they want. So some cases are still getting resolved, some are frozen, and the rest will will probably get broken free once Olinowski is deciding. And so, just so it's clear, the Supreme Court in Olinowski, when they had it in the end, they more or less said, we can't decide it. We need to have this special master appointed. 2s Yes, that's true. They looked and said, this record is incomplete and we do want to make a decision on it, which was that was really the important part. They were gamed to make a decision and felt that there was not an adequate record yet to do that. And that's why they appointed the Special Master and conducted a year and a half's worth of expert testimony hearings so they could get the kind of record they could really evaluate and make a decision once and for. Right. So we still are in this holding pattern as a state of not knowing whether Dr e experts are considered scientific. 2s Yes, that's correct. Go ahead. No, 1s we're in a spot there. We have a little peek behind the curtain right now. Melissa so the Special Master finished the hearings, took briefs, and he just judged Lisa and he wrote his opinion, the 384 page Special Master opinion. If you want to get put to sleep, pick that up and take a look at it. But the NetNet in that opinion is that it is scientifically reliable. And not only is the program itself scientifically reliable, there were some components within that. For instance, when officer tries to check your eyes for a twitching that we call Nystagmus that generally had never had a scientific reliability hearing and was inadmissible if you really pressed it, that is a component of the Dre exam. So by him saying the entire program is reliable, that's now put a rubber stamp on this eye test as well. So a lot more things than just Dre. At least that's what this judge says. And then we had all these wrinkles that happened after Judge Lisa published his report. Right. So we're going to discuss that in a second and where we are. But I do want to go back and follow up. When you say Bergen County initially put a stop to Dre trials and then nowhere else, sort of took that stand, we are talking it's not the do we have 21 counties in New Jersey, 2s 26 counties in New Jersey. It's that 1s we're not talking about just the counties, we're talking about the municipalities. And 2s almost every town has their own municipal court. So we're not talking about potentially 26 different results. We're talking about over 200. Is there 270? I think there's five municipalities in the state. I mean, that's a lot of different courts making a lot of different ruling right now about Dres. 2s Yeah, for sure. I guess that creates a strategy. Question for a defense lawyer like yourself is, if you have a dre case, do you want to agree to a stay and see what the outcome is? At this point, you may not want to because you've sort of see the tea leaves where it might be going. And if you force the issue now, in the absence of a rubber stamp on the proceedings, you still have an advantage. Maybe. When did Judge Lisa's decision come out, or a recommendation? Yeah, I think that came out in December. Melissa 2s and shortly after that, everybody's antennas went up because the Supreme Court on its own 1s invited all the participants in that litigation to now brief a completely different issue, and that is whether we should use what we call a Fry standard or a Daubert standard to analyze whether it's scientifically reliable. So the analysis is looked under either a microscope we would call Daubert or Fry, and all the states in the country handle that differently as well. If you want to discuss that. Well, I would love to discuss it, because I don't think New Jersey had an issue of what the scientific standard was before that that question arose. What was the standard before the question arose? 2s Yeah. In the context of criminal cases, it was based on an old 1920s US. Supreme Court case. Fry versus the United States. And the best way to describe that is you can look and see if it's been accepted through judicial opinions. The newer novel, Science in front of you, has been accepted by the science community in general. And that's the general approach. And I would say a Fry hearing, what we call them is that the science is the gatekeeper. If it's something that's really reliable, but even if it's new and it's based on some strong theory of things that have been reliable in other areas of science, it could come in. Science is the gatekeeper, right? 1s And that's what Jersey has been for a long, long time in the criminal world. Now, civil, we were not since the civil litigation, we used a different standard called Daubert. And so we had a different standard for criminal. And which is interesting because I don't know the Daubert standard because I don't do any civil, but I'm very familiar with the Fry and it's 2s scientific test that is generally accepted within the community, relevant scientific community, to be reliable, which 1s it's interesting because fingerprints were considered fine under Fry, but polygraph tests are not fine under Fry. So that's a really good example of the distinction. 2s What about Dalbert? What is the standard there? 2s So Daubert is I guess the best way to describe that, describe that against Fry would say that the judge is the gatekeeper, not the science. So ultimately, you're going to be putting the same stuff in front of the judge, how reliable it is in this community, in that community and a third scientific community. But the judge makes the ultimate determination on reliability and doesn't have to say it's because it's reliable for science reasons. It's just the judge, he or she saying, you know, I find there's enough here that I would be comfortable letting it into my courtroom as reliable scientific proof. So if we have 500 different municipalities and they accepted Dalbert, then we have potentially 500 different judges deciding whether 1s a Dre expert would be admissible in their courtroom. So if you obtained a DUI charge in Atlantic City, you might get a different result than if you have a DUI charge in 1s Paramus. Yes, that's exactly right. Unless you have the State Supreme Court giving a uniform standard and telling you what they want you to use. And it looks like that's where we're headed. Right. And I think what was surprising is that that wasn't a question that really came up beforehand. Right. It sort of a novel issue regarding whether it should be the Fry or Dauber, which is interesting because 1s traffic, although we consider it traffic, it is criminal. They still have a burden of proof comparable to a jury trial. You have to prove it beyond a reasonable doubt. Which is different than the civil standard. Correct. 2s Very true. Very true. Yeah. And the fry. It was fry. And you and I both have common friends who were involved in this olinowski litigation. 1s And there is some suspicion that based on the Special Master Report, the Supreme Court thought, well, jeez, this just might not pass muster despite what the Special Master saying under the Fry standard. And then we got this sudden, you know, of its own volition. The court wants to analyze whether it should switch to Daubert. And from 1000ft up, Daubert generally can be an easier standard for the proponent of the scientific evidence to get it in. So the question is, if Daubert is adopted for Dres, does this open the door to change the standard in all criminal cases? Yes. The Supreme Court's made it clear that they wanted briefing on whether we should switch from Fry to Daubert. And if we switch, it's going to be for everything. So in the context of a traffic court DWI case, we could now have this 1s humongous shift to a different standard altogether. Daubert which is sort of interesting because I am sure that the attorneys handling the case on both sides actually did not see 2s that we were going to be going and addressing the Fry Daubert standard of admissibility. Do you think that's fair to say? I do. I don't think anybody saw it coming. But when it did come, 1s that part of the litigation did move rapidly. So there was some consensus among the Attorney General and the state public defender's Office that we should switch to a Daubert standard. I'm not sure why. The state bar also weighed in and thought it would be a good idea to switch to the Daubert standard, primarily because I think the state bar is mostly civil attorneys. There are some criminal defense attorneys in there, but it's mostly civil and they're used to Daubert. So the three big heavy hitters in the litigation all thought Daubert was where it should go. And it was no surprise that our Supreme Court just very recently came out and said, okay, it's going to be Dobert from now on. So now we have that answer right. The public defender's office also supported Daubert. 1s It did, and I'm not sure why that was. I really don't know the answer. I can tell you that 3s Fry is a better standard for defense attorneys. There's no doubt about it. And I've asked some of my prosecutor friends in Florida who try case after case after case. I mean, that's all they do is try cases. And the public defenders that I know in Florida, same thing. They're in the trenches every day, and the stuff comes up on a very regular basis, and they would know. And uniformly, the state says, oh, we love Daubert better, and defendants say, we like Fry better. So we've switched to an easier standard for the state if they're the proponent of scientific evidence. Right? There is a part of me that's always like, I don't understand that position. 2s I do wonder 2s why, but I guess it's above my pay grade as well, why the public defender's office would take that position. We should get the state defender in on a podcast and talk to them. I'm just going to give them a call. I'm sure Joe will be happy to talk to me. We're on a first name basis. 2s I kid. I kid. Anything else that you think that anyone interested in Duis and Dre should experts should know with regards to where we are today. After Olinowski. Yeah. So let's assume for a second the dust settles. We have a Daubert standard, and they admit Dre as a viable program. That doesn't mean it's over. If someone's charged with a drug DWI. It just means your approach on the case is different. It used to be this Dre is BS, and it's not even admissible. Let's talk about a resolution. That was always how you stepped into a prosecutor. But if it's now admissible, it's going to be can we pick apart that program and so we can develop a matrix? Dre. No talks. Dr e talks. How they handle the case. And the Dre 1s work in every single case is very defendable. You can really make headway into it as a defense attorney in terms of holes in the program, so it's not over by a long well, you still agree that you need it all. You need the toxicology, you need the expert, right? And then you need the observations. Am I missing? I think you do. 1s I think you do. I really think the way the Dre program touts it is that the toxicology isn't mandatory, but it can be corroborative of the officer's opinion. 1s But you really want that to link it together. It makes the case stronger, and the absence of it, I think, makes the case weaker. So, yeah, it should be there. 1s Right. 2s And Men, it always goes to whether the prosecutor really wants to prosecute, try a case that is complicated because I do think the Dre expert cases are more complicated than 1s the Alcatel readings with the alcohol issues. 1s Yeah. I mean, you have the whole layer of the Dre and his or her work, whether it's accurate, whether their call on the drug is accurate. And then you've got all the constitutional issues, the Fourth Amendment issue, on the taking of the blood or the urine, was that done properly? And the science, they're going to come back with a result on the blood or the urine. And if that scientific work, it wasn't done properly, there's a separate scientific challenge just to the admissibility of the result. So, yeah, multilevel attack from the defense side in a Dre case. Correct. So not all is lost just because Dr e are considered admissible and scientific. 2s Correct, right. Yeah. With with a lawyer that's up to speed, like you on these types of cases, there are still plenty of defenses left. Oh, well, that's good. 1s Well, thank you so much for joining me. I think we did a very deep dive into this, and it's good to know for anyone listening, it's sort of duis are the type of offenses that really affect ah, so many people. You know, it is, you know, it happens so many law abiding people or people who just, you know have you had cases with people on prescription medicine that just didn't even realize the effects? Yes. 1s It touches all aspects of life, every demographic, every income strata. It's just everybody drives. Right. So you're going to see it on a regular we live in Jersey. There's no way to live here without a car, right. God forbid you take the train. There you go. Well, thank you again so much for your time. I appreciate you. I always know that I can call you when I have questions, and you're always been such a great friend, so thanks, Chris. Likewise. Same here. Thanks for having me. I appreciate your time. Anytime. You're welcome back any anytime, Chris. Okay, take care. See you.

Chris Baxter, EsqProfile Photo

Chris Baxter, Esq


Mr. Baxter graduated summa cum laude with a B.S. from Boston College in 1986 and from Rutgers Law School in 1989 with honors. While at Rutgers, Mr. Baxter was an associate editor of the Rutgers Law Journal and authored: “Right to a Free and Appropriate Education - The Education For All the Handicapped Act Does Not Contain An Implicit Dangerousness Exception", 20 Rutgers L.J. 561 (1988).

In 1995, Mr. Baxter founded his current firm, Law Offices Christopher L. Baxter (formerly Baxter & Kourlesis), and has been a partner in the firm since its inception. Mr. Baxter limits his practice to defending those accused of criminal and DWI offenses, with a special focus on forensic blood alcohol and drug testing. He frequently presents on legal and scientific topics to his peers.

Mr. Baxter is an Adjunct Professor of Law at Widener Law School where he teaches a DWI legal theory and practice course. He was recently named a Fellow in the American Institute of Chemists by its board of governors.