Driving Under the Influence of Marijuana Once it is Legal in New Jersey

This decision is pending before the N.J. Supreme Court — The following is the standard of review of the Appellate Court

STATE OF NEW JERSEY,   v. MICHAEL OLENOWSKI, Argued October 23, 2018 – Decided November 27, 2018

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

I am sure I have written about this case previously, however I am writing about it again because the NJ Supreme Court recently hear oral argument on the case and a decision is sure to be issued shortly which will effect cases in the future concerning driving under the influence of a drug——namely marijuana when that becomes legal in the state after the next election.

Our standard of review is limited following a trial de novo in the Law Division, conducted on the record developed in the municipal court. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005); see also R. 3:23- 8(a)(2). In such an appeal, we “consider only the action of the Law Division and not that of the municipal court.” State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citation omitted). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court judge to assess the witnesses’ credibility. State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted). We focus our review on “whether there is ‘sufficient credible evidence . . . in the record’ to support the trial court’s findings.” State v. Robertson, 228 N.J. 138, 148 (2017) (alteration in original) (quoting Johnson, 42 N.J. at 162). On a legal determination, in contrast, our review is plenary. See State v. Kuropchak, 221 N.J. 368, 383 (2015).

We will reverse only after being “thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.” Johnson, 42 N.J. at 162. “We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.” State v. Barone, 147 N.J. 599, 615 (1997). Because neither the appellate court nor the Law Division judge is in a good position to judge credibility, the municipal court’s credibility findings are given deference. See State v. Locurto, 157 N.J. 463, 470-71 (1999). The rule of deference is more compelling where, as here, both judges made concurrent findings. Id. at 474. “Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.” Ibid. (citation omitted). Therefore, appellate review of the factual and credibility findings of the municipal court and the Law Division “is exceedingly narrow.” State v. Reece, 222 N.J. 154, 167 (2015) (quoting State v. Locurto, 157 N.J. at 470).