Articles Posted in Blood Testing

wildflowerNew Jersey’s driving while intoxicated (DWI) statute allows the state to prove that a defendant was impaired by alcohol with the results of blood alcohol content (BAC) testing. A BAC of 0.08 percent or higher creates a legal presumption of impairment. Police can determine BAC by testing a sample of breath, blood, or urine. Breath testing is considered to be the least intrusive. Blood and urine tests must follow the rules established by the Fourth Amendment for searches. A defendant can challenge the admissibility of BAC evidence by establishing a violation of their Fourth Amendment rights. A 2013 U.S. Supreme Court decision specifically addressed warrantless blood draws in DWI cases. The New Jersey Appellate Division cited that decision earlier this year in State v. Smijean, reversing a DWI conviction that involved BAC evidence from a warrantless blood draw.

Breath testing for BAC requires a person to blow into a tube attached to a testing device commonly known as a breathalyzer. Most New Jersey police departments use a device known as an Alcotest. Submission of a breath sample is mandatory for anyone who drives on a public road in New Jersey, and refusal to submit a breath sample upon request by law enforcement is a separate motor vehicle offense.

Since breath testing only requires blowing into a tube, it is not considered a “search” under the Fourth Amendment. Blood testing, however, is considered intrusive enough to fall under the Fourth Amendment’s prohibition on warrantless searches. Drawing a person’s blood therefore requires that person’s consent or a warrant issued by a judge. In a general sense, police may be able to conduct a search without a warrant if they can establish that “exigent circumstances” made it impractical to obtain a warrant first, usually because of the risk of loss or destruction of evidence. How this exception applies in DWI cases has been a matter of dispute.

test tubeThe legal standards in New Jersey for proving impairment by alcohol in cases of alleged driving while intoxicated (DWI) are fairly well established. Prosecutors can offer evidence of a defendant’s alleged blood alcohol content (BAC), or they can introduce eyewitness and expert testimony. The DWI statute does not only apply to alcohol, however. It also makes it an offense to drive while “under the influence of…[a] narcotic, hallucinogenic or habit-producing drug.” New Jersey has no equivalent to the BAC limit of 0.08 percent for drugs. A handful of states have established “legal limits” for certain drugs, but no consistent standards exist. Furthermore, breath testing cannot establish the amount of any particular drug in a person’s system, meaning that the state must rely on blood and urine testing. As legal marijuana becomes more prevalent in various parts of the country, these inconsistencies are likely to become clearer.

Under New Jersey law, a driver commits a DWI offense if they operate a vehicle with a BAC of at least 0.08 percent. This is sometimes known as DWI per se, since the state can meet its burden of proof based solely on BAC evidence and evidence that the defendant actually was driving or imminently intended to drive. Prosecutors can also establish guilt without BAC evidence—or occasionally with test results showing a BAC of less than 0.08 percent—through testimony and other evidence. This often includes testimony from police officers who observed a defendant’s demeanor and appearance, particularly if the defendant was driving erratically, had slurred speech, or otherwise displayed outward signs of intoxication by alcohol.

The DWI statute does not mention any specific drug other than alcohol, but courts have interpreted it to mean both illegal drugs and legal drugs that can affect a person’s ability to drive or operate machinery. They have held that eyewitness and expert testimony is sufficient to prove impairment by drugs. In 1975, the New Jersey Supreme Court held in State v. Tamburro that the state must offer evidence that a defendant’s “conduct, physical and mental condition and the symptoms displayed” are consistent with the effects of a narcotic. If the state meets this burden, the court held, it does not have to identify any specific narcotic. The court held in 2006’s State v. Bealor that, unlike in cases involving alcohol intoxication, lay testimony alone is not sufficient to establish impairment by marijuana or other drugs. Police officers with proper training, according to the court, may offer expert testimony.

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Ice waterNew Jersey law allows prosecutors to offer evidence of driving while intoxicated (DWI) in two ways. One way relies on evidence like testimony by police officers about outward signs of intoxication, including appearance and behavior. The second method involves evidence that a defendant’s blood alcohol content (BAC) was above a certain level. This is often known as “per se” DWI because the BAC evidence creates a presumption that the defendant was impaired by alcohol. A DWI defense strategy should take both methods of proving DWI into consideration. Defending against a per se DWI charge in New Jersey often involves challenging police equipment more than police witnesses. The Appellate Division recently considered an appeal of a per se DWI conviction in State v. Page.

The DWI statute defines the offense as driving either “while under the the influence” of alcohol or drugs or with a BAC of at least 0.08 percent. The latter definition constitutes per se DWI. It does not necessarily require any evidence other than the defendant’s actual or imminent operation of a motor vehicle and the defendant’s BAC at or near that time. It is possible to obtain an acquittal or dismissal in a DWI case even with evidence of a BAC over 0.08 percent. It is also possible, however, for the state to obtain a conviction without BAC evidence or with a BAC of less than 0.08 percent.

New Jersey courts have established a variety of procedures and protocols that police must follow in an effort to ensure the accuracy of BAC test results. Police in this state commonly use a device known as the Alcotest to measure BAC. The defendant must provide a breath sample by blowing into a tube. The device then measures the alcohol content of the sample. The Alcotest requires regular maintenance and careful calibration, and it can produce inaccurate results without either of these. A 2008 decision by the New Jersey Supreme Court, State v. Chun, establishes maintenance and record-keeping protocols that police must follow for Alcotest results to be admissible in court. It also requires police to observe a DWI suspect for 20 minutes before administering the test.

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Blood TubesUnder New Jersey’s driving while intoxicated (DWI) statute, a defendant is presumed to be legally impaired by alcohol if their blood alcohol content (BAC) is 0.08 percent or higher. Police in New Jersey commonly use a device known as the Alcotest to collect breath samples, which the device analyzes to measure BAC. Police may also obtain blood or urine samples to test, but state law only requires drivers to submit breath samples in DWI investigations. Obtaining a sample of blood usually requires a warrant or the person’s consent. Determining whether a defendant gave proper consent to a warrantless blood draw is a key question courts must consider. The New Jersey Appellate Division ruled on this issue earlier this year in State v. Milkosky.

The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before searching a person or their property. Drawing blood for use in a police investigation counts as a “search.” Courts have identified multiple exceptions to the Fourth Amendment’s warrant requirement. The “exigent circumstances” exception applies when police and prosecutors can demonstrate that taking the time to get a warrant from a judge would result in greater harm than the warrantless search, such as the destruction of evidence, the escape of a suspect, or harm to an officer or others.

Police have, at times, claimed exigent circumstances to justify collecting blood samples from a DWI suspect without a warrant or the suspect’s consent. Alcohol breaks down in the human body due to the process of metabolism. In 2013, the U.S. Supreme Court rejected the claim that the metabolism of alcohol in the body, by itself, satisfies the exigent circumstances exception. The decision, Missouri v. McNeely, established that a warrant or the suspect’s consent is required for most blood draws.

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test tubesChemical testing for alcohol or drugs is a key component of most prosecutions for driving while intoxicated (DWI) in New Jersey. Breath testing is mandatory under state law, but the Alcotest and similar devices can only test for the presence of alcohol. If police suspect driving under the influence of drugs, New Jersey law provides no immediate means to obtain evidence. Drawing blood without a person’s consent requires a warrant in most circumstances. The New Jersey Appellate Division took up these issues in an appeal that challenged the admissibility of blood test results. Its ruling in State v. Nasta deals specifically with criminal charges, rather than DWI, but it is likely to affect New Jersey DWI cases in the future.

Since it involves an invasive procedure, courts have held that drawing blood as part of an investigation for DWI or another offense is a “search” within the meaning of the Fourth Amendment to the U.S. Constitution. This means that police must obtain a warrant from a judge by demonstrating that they have probable cause to believe that the search will reveal evidence of wrongdoing.

Police are not required to obtain a warrant in certain situations identified by courts as exceptions to the Fourth Amendment. One exception involves “exigent circumstances,” in which taking the time to obtain a warrant would risk greater harm than a warrantless search. The impending destruction or loss of evidence could constitute an exigent circumstance. The U.S. Supreme Court, however, ruled in Missouri v. McNeely that the natural breakdown of alcohol by the human body is not “exigent” enough to allow a warrantless blood draw. The court has not said that a warrantless blood draw is never justified by exigent circumstances, but it has not identified what those circumstances might be.

blood cellsEvidence of a driver’s blood alcohol content (BAC) is a critical tool for prosecutors in driving while intoxicated (DWI) cases. Under the New Jersey DWI statute, a driver with a BAC of at least 0.08 percent is presumed to be impaired. BAC evidence can come from tests on a sample of a driver’s breath or blood. Because of the importance of BAC evidence in DWI cases, New Jersey makes it a separate traffic offense to refuse to submit a breath sample, punishable with a fine and license suspension. Some states make refusal a criminal offense, meaning that it could result in jail time, and require submission to both breath and blood testing. The U.S. Supreme Court considered a Fourth Amendment challenge to criminal refusal statutes last year. Although New Jersey’s refusal statute does not impose criminal penalties or require blood testing, the court’s ruling in Birchfield v. North Dakota is important for DWI defendants all over the country.

Anyone who drives on public roads in New Jersey has, according to state law, given their implied consent to breath testing in a DWI investigation. This allows the state to charge anyone who refuses to submit a breath sample with a traffic offense. New Jersey law does not require drivers to submit to blood testing, however, unless police obtain a warrant. The defendants in Birchfield challenged statutes in Minnesota and North Dakota that impose criminal penalties for refusal. The North Dakota law included both breath and blood samples.

The Fourth Amendment generally prohibits “searches and seizures” without a warrant supported by probable cause to believe that a search will yield evidence or contraband. Numerous courts have held that breath and blood testing are “searches” within the meaning of the Fourth Amendment. Courts have also recognized exceptions to the warrant requirement, however. The “search incident to arrest” exception, for example, allows police to search a person during an arrest. Police may also claim that “exigent circumstances,” such as the imminent destruction of evidence, made waiting to obtain a warrant impractical.

Effects of caffeineThe New Jersey traffic offense of driving while intoxicated (DWI) is not limited to intoxication due to alcohol. The state can charge a driver with DWI based on the alleged presence of almost any substance that can cause impairment. A case currently pending in California demonstrates an unexpected example of this aspect of DWI law. The driver is facing DWI charges based on alleged impairment by caffeine. This type of DWI charge is probably possible under New Jersey’s DWI statute, although no reported court decisions specifically mention it. A bill currently pending in the New Jersey Legislature could prohibit drinking coffee while driving, although it would do so for reasons that are not directly related to DWI prevention.

New Jersey’s DWI statute establishes two types of DWI offenses. If a person drives with a blood alcohol concentration (BAC) of 0.08 percent or more, that is considered DWI per se. The other type of DWI offense involves operating a motor vehicle “while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” It is possible for the state to charge someone with DWI even if their BAC was less than 0.08 percent or in the absence of any BAC evidence, but prosecutors tend to favor the use of BAC in order to prove guilt. In a 2010 decision, State v. Marquez, the New Jersey Supreme Court called BAC “the most concrete and important piece of evidence” in a DWI case.

The term “habit-producing drug” is generally construed to mean illegal drugs or prescription medications. It could hypothetically include caffeine, which is known to create both physical and psychological dependence. New Jersey appellate courts have mentioned caffeine in the context of DWI, but it does not appear that they have ever dealt with it as an alleged intoxicant. The Appellate Division considered a DWI case in 2011, State v. Driscoll, in which the defendant was convicted of DWI despite zero-percent BAC, in part based on poor performance on the horizontal gaze nystagmus (HGN) test. The defendant had a prescription for Fioricet with codeine, which also contains caffeine. The court reversed her conviction. The court also cited caffeine as a possible complicating factor in HGN tests in a 2000 decision, State v. Doriguzzi.

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A defendant in a New Jersey driving while intoxicated (DWI) case can appeal a negative outcome, but appellate courts are limited in their authority to review some lower court actions. A recent decision by the New Jersey Superior Court, Appellate Division illustrates two important issues in a DWI defense. The defendant in State v. Hernandez challenged the evidence that she was intoxicated, arguing that police had her blood drawn without a warrant in violation of her Fourth Amendment rights. She also, at one point in the appeal, challenged the trial court’s findings regarding the credibility of her testimony as compared to several police officers’ testimony. Limitations on the appellate court’s ability to review factual findings, as well as the timeliness of the defendant’s objections, largely determined the court’s ruling.

The “exigent circumstances” exception to the Fourth Amendment’s warrant requirement allows police to conduct a warrantless search if they reasonably believe that there is a substantial risk of the loss or destruction of evidence. Police have used this exception to justify drawing blood from a DWI suspect without a warrant. In 2013, however, the U.S. Supreme Court ruled in Missouri v. McNeely that the human body’s natural process of metabolizing alcohol is not an “exigent circumstance” justifying a warrantless blood draw. Police can still establish legitimate justifications for warrantless blood draws, but McNeely set a much higher standard than before.

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Urine Sample BottlesIn order to prove impairment in a driving while intoxicated (DWI) case, New Jersey prosecutors can present the arresting officer’s testimony about their observations of a defendant and the result of chemical testing that shows a defendant’s blood alcohol content (BAC) shortly after their arrest. Since DWI statutes in all 50 U.S. states create a presumption that a person is impaired if their BAC is 0.08 percent or higher, prosecutors often prefer to present chemical testing results. New Jersey law essentially requires drivers to submit to breath testing, but courts have set limits on when police may collect blood or urine samples. A recent article in the publication Vice documents an incredibly troubling—and frankly, cringe-inducing—practice of collecting urine samples by force.

The U.S. Supreme Court ruled in Schmerber v. California in 1966 that police may collect blood samples without a warrant in DWI cases, although it placed significant limits on that holding in 2013 in Missouri v. McNeely. The New Jersey Appellate Division held in Jiosi v. Township of Nutley in 2000 that Schmerber “did not provide a carte blanche exception to the warrant requirement whenever there is probable cause to believe a suspect is under the influence of alcohol or drugs.”

If police obtain a warrant for a blood or urine sample, the question then becomes which measures they may use to obtain that sample. New Jersey’s implied consent statute holds that anyone who drives on public roads in this state has consented to providing breath samples for BAC testing. It also states, however, that chemical tests cannot “be made or taken forcibly and against physical resistance thereto” by a DWI suspect.

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Supreme CourtThe Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures” by police, requiring them first to obtain a warrant from a judge. The U.S. Supreme Court is currently considering a Fourth Amendment challenge to state laws regarding “implied consent,” by which anyone operating a motor vehicle on that state’s public roads is considered to have consented to breath testing in investigations of suspected driving while intoxicated (DWI). Unlike New Jersey’s implied consent statute, the statutes at issue, from Minnesota and North Dakota, impose criminal penalties, including jail time, for refusing to submit to breath testing. The court’s eventual decision in Birchfield v. North Dakota is still likely to have an impact on New Jersey DWI law.

Evan Levow, President of the DUI Defense Lawyers Association (DUIDLA), was part of the amicus team from DUIDLA that submitted a brief to the U.S. Supreme Court in this case.

New Jersey law defines refusal as a traffic offense, which is generally not subject to as great a penalty as a criminal offense. A New Jersey refusal conviction results in a license suspension and a fine, but no jail time. For a first conviction, the period of license suspension is seven months to one year, and the fine is $300 to $500. This increases to two years’ suspension and a $500 to $1,000 fine for a second offense, and 10 years and $1,000 for a third or subsequent conviction. Penalties are further increased if an offense occurred in the vicinity of a school.

The North Dakota statute being challenged in Birchfield includes refusal in its definition of DWI, making it a misdemeanor or felony offense to refuse “a chemical test, or tests, of the individual’s blood, breath, or urine.” New Jersey’s law, it is worth noting, only requires breath testing. The penalty for a first offense does not appear to include jail time, but a second offense carries a mandatory minimum of 10 days in jail. A felony offense includes “at least one year and one day’s imprisonment.”

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