Blood Testing in New Jersey DWI Cases

By Calle Eklund/V-wolf (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY 3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia CommonsIn prosecutions for alleged driving while intoxicated (DWI), the state often relies on a defendant’s blood alcohol content (BAC), as indicated by a breath or blood test. New Jersey’s implied consent statute imposes penalties on drivers who refuse to submit a breath sample to an Alcotest device. By driving on the roads of New Jersey, a motorist has given implied consent to breath testing. The implied consent law, however, does not include blood testing. There is no penalty for refusing to submit to a blood test in New Jersey.

The law regarding warrantless blood draws in DWI cases has changed recently, thanks to a 2013 decision from the U.S. Supreme Court (SCOTUS), and New Jersey courts are still working out some of the details. A June 2015 Appellate Division decision, State v. Majao, reviews former and current state law, as well as the evidence required to establish the admissibility of BAC results obtained through a blood test.

A New Jersey State Trooper who responded to the defendant’s one-car accident stated that the defendant’s vehicle had flipped, gone over a guardrail, and come to rest on an embankment about 15 feet from the road. The trooper testified that he spoke to the defendant in the ambulance on the way to the hospital, where he “detected the presence of alcohol on [the] defendant’s breath.” He also claimed that the defendant’s eyes appeared “bloodshot and watery.”

The trooper asked a phlebotomist at the hospital to draw blood samples from the defendant. He testified about the phlebotomist’s procedure in collecting the blood samples, and he stated that he took the samples directly to the station and logged them into evidence. Lab tests indicated a BAC of approximately 0.119%.

The defendant appealed from the municipal court, and the Law Division convicted him of DWI. He argued that (1) the BAC evidence was inadmissible because the state did not prove his blood was “drawn in a medically-acceptable manner,” (2) the BAC was inadmissible because the blood draw was performed without a warrant, and (3) the evidence was insufficient to prove guilt beyond a reasonable doubt. The appellate court dismissed the first point of appeal outright, holding that the trooper’s testimony about the blood draw was enough to establish its medical acceptability. The court similarly dismissed the third point.

Until recently, New Jersey law enforcement was permitted to collect blood samples from a DWI suspect without a warrant under the 1966 SCOTUS ruling in Schmerber v. California and the 1984 New Jersey Supreme Court (NJSC) ruling in State v. Dyal. The officer must have probable cause to suspect intoxication, and the blood draw must be performed in a medically acceptable manner at a health-care facility. A 2001 NJSC ruling, State v. Ravotto, barred the use of “excessive force” in warrantless blood draws.

A 2013 SCOTUS ruling, Missouri v. McNeely, overturned significant parts of Schmerber and Dyal. It held that the dissipation of alcohol in the bloodstream, by itself, is insufficient to justify a warrantless blood draw. The NJSC adopted McNeely in 2015 in State v. Adkins, applying it retroactively. The Majao court found that the facts of the present case were very similar to the facts in Schmerber, in which emergency treatment at the hospital after an automobile accident delayed the collection of a blood sample. The court held that the trooper reasonably concluded that an emergency situation was present that justified a warrantless blood draw.

Evan M. Levow, a New Jersey DWI defense attorney, advocates for the rights of people accused of DWI in New Jersey courts. “We dedicate 100% of our efforts at Levow DWI Law to challenging the evidence and defending our clients’ rights in DWI cases,” Levow says. Regarding the Majao case, Levow was surprised that the court did not require the phlebotomist to testify about the blood draw. “There are so many things that can go wrong during a blood draw. There are specific things that the phlebotomist must do to insure the integrity of the sample that the officer would not know about. Failure to determine how the blood was drawn should have been fatal to the State’s case against Mr. Majao.”

To schedule a free and confidential consultation to see how Levow DWI Law can help you, contact us today online or at (877) 975-3399.

More Blog Posts:

New Jersey Supreme Court Retroactively Applies 2013 U.S. Supreme Court Ruling on Forced Blood Draws in DWI Cases, New Jersey DWI Attorney Blog, August 12, 2015

Driver Charged with DWI-Related Offense Despite Breath Test Results Below 0.08%, Based on “Totality of the Circumstances”, New Jersey DWI Attorney Blog, April 2, 2015

Implied Consent Statutes Do Not Allow Warrantless Blood Tests, According to Several State Supreme Courts, New Jersey DWI Attorney Blog, January 9, 2015

Photo credit: By Calle Eklund/V-wolf (Own work) [GFDL or CC BY 3.0], via Wikimedia Commons.