Articles Posted in Blood Testing

New Jersey’s laws dealing with the offense of driving while intoxicated (DWI) say a great deal about impairment by alcohol, but far less about impairment by other substances. The statute makes it a motor vehicle offense to drive “while under the influence” of alcohol, with blood alcohol concentration (BAC) of 0.08 percent, or while under the influence of a “narcotic, hallucinogenic or habit-producing drug.” This last category is ill-defined, especially when compared to the vast body of law dealing with alcohol. New Jersey courts may accept testimony regarding impairment by drugs even in the absence of evidence of any specific drug in a sufficient amount to cause impairment. Understanding how New Jersey law deals with “drugged driving” is critical to mounting a defense.

State law identifies two types of DWI involving alcohol. Operating a vehicle while “under the influence of alcohol” constitutes DWI, but requires the state to prove the existence of alcohol’s “influence” over a defendant. If a defendant had BAC of 0.08 percent or more, state law presumes that they were under the influence. This is known as DWI per se. Courts have developed an extensive set of rules surrounding DWI allegedly caused by alcohol, especially when breath testing is involved.

We were part of a landmark 2008 decision by the New Jersey Supreme Court, State v. Chun, which established procedures and requirements for the admissibility of BAC evidence obtained from breath testing. It addressed the breath-testing device used by law enforcement around the state, known as the Alcotest. The state supreme court has reiterated the importance of the procedures set forth in Chun. In a 2015 decision, for example, it stated that any finding of guilt in a DWI per se case “is subject to proof of the Alcotest’s reliability.”
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Police and prosecutors can use blood alcohol content (BAC) evidence to prove that a defendant charged with driving while intoxicated (DWI) in New Jersey was under the influence of alcohol. State law presumes that a person was too impaired to drive safely if their BAC was 0.08 percent or higher. Evidence of BAC at or above this “legal limit” does not automatically mean, however, that the state has met its burden of proving guilt. When police are not able to conduct breath testing for BAC, such as when a driver suspected of DWI must go to the hospital after an accident, they might test a sample of the person’s blood instead. Blood testing presents different challenges for police, and opportunities for defendants to dispute the evidence against them.

Breath vs. Blood Testing

The New Jersey DWI statute uses very broad language to define the offense and state what kind of evidence the state may use to prove that a person was “under the influence of” alcohol. State and federal courts have filled in many details regarding the collection of breath, blood, or urine samples to test for BAC. Police throughout New Jersey use a device called the Alcotest to test breath samples at police stations. The device analyzes the breath sample and reports results in a few moments.

A medical professional must draw a blood sample for BAC testing. This usually occurs at a hospital. The sample must then be transported to a laboratory. Prosecutors must show a clear chain of custody for the sample, and they must be able to establish that no contamination occurred at any point.
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New Jersey prosecutors can prove guilt in driving while intoxicated (DWI) cases by presenting evidence showing beyond a reasonable doubt that a person was impaired by alcohol or drugs while operating a vehicle. They can also prove guilt, at least with regard to impairment by alcohol, by showing that a person’s blood alcohol content (BAC) was at least 0.08 percent. Police can measure BAC using samples of a person’s breath or blood. For drugs other than alcohol, they must test blood or urine. Drug testing is far from a settled science, and false positives still occur quite often. DWI defense in New Jersey requires careful examination of evidence that supposedly shows positive drug test results or BAC above the “legal limit” of 0.08 percent.

State law requires drivers to submit breath samples for BAC testing. Anyone driving on New Jersey’s public roads is considered to have consented to breath testing. Refusal to submit breath samples is a motor vehicle offense that could be charged along with DWI. Blood and urine samples still require either a search warrant or a driver’s consent.

Police in New Jersey use a device known as the Alcotest to test breath samples for BAC. Unlike blood or urine samples, breath samples cannot be stored for later testing. The Alcotest is therefore designed to perform tests at police stations, not laboratories. A person blows into a tube, and the device subjects the breath sample to chemical reactions. The device requires frequent maintenance and careful calibration.
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New Jersey has developed an extensive body of law addressing the investigation and prosecution of suspected driving while intoxicated (DWI), at least when the substance in question is alcohol. Testing the amount of alcohol present in a person’s system, known as blood alcohol concentration (BAC), is a highly imperfect process, which is prone to constant errors. Despite its many flaws, it is still a better system than anything available for determining whether a driver was impaired by other drugs. Currently, New Jersey prosecutors pursuing alleged driving under the influence of drugs (DUID) must rely on (1) chemical tests with no specific threshold amount to determine impairment, and (2) the testimony of police officers purportedly trained to identify outward signs of intoxication by various drugs. As legislators continue to consider the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA), questions will continue to abound about how to enforce DUID laws involving marijuana, and how to defend people charged with that alleged offense. If you have been charged with a DWI, it is important that you speak with a New Jersey DWI attorney as soon as possible.

In cases involving alcohol, New Jersey’s “legal limit” of 0.08 percent BAC creates a presumption of impairment. This is often known as per se DWI. New Jersey law has no specific threshold amount for marijuana or any other drug in DUID cases. Police can seek a warrant to test samples of blood or urine, but that only indicates whether or not a suspect had a particular drug in their system at the time the sample was taken. Prosecutors usually must produce other evidence to establish impairment. This often involves testimony by police officers who receive specialized training as “drug recognition experts” (DREs).

In cases involving alleged marijuana impairment, chemical testing evidence and DRE testimony may conflict with one another. Marijuana can show up in blood or urine tests long after its effects have worn off. Several recent New Jersey cases have relied on chemical tests allegedly showing the presence of marijuana in a driver’s system, despite testimony from eyewitnesses, including police officers, who did not notice any signs of impairment.

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The Fourth Amendment to the U.S. Constitution protects people from “unreasonable searches and seizures” that are not supported by probable cause. It generally requires law enforcement officers to obtain a warrant from a judge before they may conduct a search, seize property, or make an arrest. Courts have identified numerous exceptions to this requirement, however. In New Jersey driving while intoxicated (DWI) cases, drivers give their implied consent to provide breath samples to police. A blood draw, however, is considered much more intrusive, and is not covered by the implied consent law. The U.S. Supreme Court has issued several rulings over the years on the question of whether police may order blood drawn from a DWI suspect without a warrant or the suspect’s consent. A ruling from June 2019, Mitchell v. Wisconsin, involved a warrantless blood draw on a suspect who was unconscious. The court vacated the conviction and remanded the case without a clear majority ruling, but five justices were inclined to support warrantless blood draws in certain situations.

If police obtain evidence in violation of someone’s Fourth Amendment rights, that person can ask a court to prevent the use of that evidence against them at trial. This is known as a motion to suppress. The state can offer various justifications for a warrantless search. The “exigent circumstances” exception has featured prominently in DWI cases involving warrantless blood draws. This exception allows police to conduct a search or seize property without a warrant when there is a significant risk of the loss or destruction of material evidence or contraband.

The Supreme Court took up the question of whether the exigent circumstances exception applies to warrantless blood draws in 2013, in Missouri v. McNeely. In a 5-4 ruling, the court found that the breakdown of alcohol in the human body over time is not, by itself, an “exigent circumstance” justifying a warrantless blood draw. It did not, however, foreclose all possibility of an exigent circumstance exception in the future.
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According to recent media reports, the number of convictions for driving while intoxicated (DWI) in New Jersey is decreasing, at least with regard to cases involving alcohol. The decline reportedly might be due to an increase in DWI cases involving marijuana and other controlled substances. New Jersey law provides no per se standard for impairment by marijuana or other drugs that is comparable to the standard for alcohol. A bill currently pending in the New Jersey Assembly, A2776, would establish a per se standard for marijuana in DWI cases. This bill, if enacted, would probably present both benefits and drawbacks for New Jersey DWI defendants.

New Jersey law creates a presumption of impairment if a defendant’s blood alcohol content (BAC) is at least 0.08 percent. This is often known as DWI per se. Since no similar standard exists for marijuana and other drugs, prosecutors must rely on testimony from police officers who have received training as “drug recognition experts” (DREs). Typically, a DRE-certified officer observes a defendant during or shortly after their arrest, and then forms an opinion of which substance(s) they took. The use of DRE testimony in court presents problems for defendants, given the wide gulf that often exists between the questionable scientific basis of their training and the weight that courts often give to police officers’ testimony.

Tests for marijuana look for specific compounds in the blood. Delta 9-tetrahydrocannabinol (THC) is the active component of marijuana, but it can dissipate in the bloodstream within a few hours. As the body metabolizes THC, it produces a form of carboxylic acid known as delta 9-carboxy-THC (THC-COOH) as a metabolite. The presence of THC-COOH can determine if someone has recently used marijuana, but it is a less accurate method of establishing actual impairment.

Police, when investigating suspected driving while intoxicated (DWI) cases in New Jersey, must obtain a warrant, or a suspect’s consent, to collect blood samples under the Fourth Amendment to the U.S. Constitution. The “exigent circumstances” exception allows warrantless searches when taking the time to obtain a warrant would create a significant risk that evidence will be lost or destroyed. New Jersey courts currently look at the “totality of the circumstances” when considering warrantless blood draws. A recent ruling by the New Jersey Supreme Court, State v. Zalcberg, considers this question in light of recent changes to the law and police officers’ accompanying uncertainty.

The New Jersey DWI statute allows the state to prove impairment based solely on a defendant’s blood alcohol content (BAC), making this sort of evidence very important to the state. Time is an important factor, since alcohol breaks down in the bloodstream over time. The U.S. Supreme Court ruled that the gradual dissipation of alcohol, by itself, is not an exigent circumstance for Fourth Amendment purposes in 2013’s Missouri v. McNeely.

In 2015’s State v. Adkins, the New Jersey Supreme Court adopted a rather narrow view of McNeely’s effect on New Jersey DWI cases. Cases decided after McNeely, including cases that were “in the pipeline” at the time McNeely was decided, are bound by that precedent. New Jersey municipal and trial courts could, however, give “substantial weight” to dissipation in determining whether the exigent circumstances should apply. While dissipation could not qualify as an exception to the warrant requirement on its own, the court effectively said that it was a major circumstance among the totality of the circumstances. This became important in Zalcberg.

New Jersey’s driving while intoxicated (DWI) statute allows law enforcement officials to obtain breath samples, for the purpose of measuring a suspect’s blood alcohol concentration (BAC), without a warrant. The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant, supported by probable cause, before conducting a search. Multiple courts, however, have held that the collection of breath samples falls under an exception to the warrant requirement. One way to explain why a warrant is not required is that people do not have a reasonable expectation of privacy in the contents of their breath. This may seem a bit trite, but it makes some sense when compared to another method of measuring BAC, blood testing. Collection of a blood sample is indisputably invasive, so courts have held that a warrant is required in most cases.

Police do not have to obtain a warrant before conducting a search, according to a long line of court decisions, if “exigent circumstances” exist that risk the imminent loss or destruction of evidence. If, for example, a police officer has reason to believe that a person inside a residence is about to destroy contraband, such as by flushing it down the toilet, courts have held that they may enter the residence for the purpose of securing the contraband. The authority of police officers to search a vehicle without a warrant, known as the vehicular exception, is based on the same principle as exigent circumstances. Since a car is mobile, waiting to obtain a warrant risks the suspect fleeing the scene. An officer must still have probable cause to believe that the car contains contraband or evidence of a crime, but they do not necessarily have to have a warrant.

Drawing blood from a DWI suspect without a warrant, in order to test their BAC, has been justified by exigent circumstances in the past. The U.S. Supreme Court allowed this in its ruling in Schmerber v. California in 1966. The court significantly limited this practice, however, in a 2013 ruling, Missouri v. McNeely. Prosecutors had argued that the human body’s natural process of metabolizing alcohol, meaning that a person’s BAC steadily decreases over time, was an exigent circumstance allowing a warrantless blood draw. The Supreme Court rejected this argument. While it may still be possible to justify a warrantless blood draw based on exigent circumstances, the breakdown of alcohol in the bloodstream cannot, by itself, serve that purpose.

New Jersey’s driving while intoxicated (DWI) statute is not limited to impairment due to alcohol. The text of the statute also includes “narcotic, hallucinogenic or habit-producing drug[s]” as substances that could cause impairment. The statute specifies a measurable amount of alcohol in one’s system that creates a presumption of impairment, but it does not do the same for any other drugs. This requires prosecutors to rely largely on eyewitness evidence from arresting officers, who may or may not have training in recognizing the signs of impairment by specific substances. If the alleged substance is illegal under state or federal drug laws, this might assist prosecutors. As more and more states pass laws allowing the use of marijuana for medical or recreational purposes, though, the issue is becoming more complicated. New Jersey may consider legislation to allow recreational marijuana use later in 2018, so law enforcement will have to address this issue soon.The New Jersey DWI statute establishes two methods of proving impairment. One method, sometimes known as “per se DWI,” presumes impairment if a defendant’s blood alcohol content (BAC) was at least 0.08 percent soon after they were allegedly operating a motor vehicle. The “implied consent” statute authorizes police to collect breath samples from anyone driving on New Jersey roads upon suspicion of DWI, and it makes refusal a separate traffic offense. Blood and urine samples may also indicate BAC, but these usually require a warrant or consent. The lack of any statutory guidelines for any drug other than alcohol means that prosecutors must pursue the other form of DWI, which requires proof of driving “while under the influence” of any of the list of substances mentioned earlier. Unlike BAC levels, this is a much more subjective question.

Some states have laws or regulations that specify an amount of marijuana, or other drugs, in one’s system that creates a presumption of impairment. For marijuana, the measurement is in nanograms of THC, the active component of marijuana, per milliliter of blood. Colorado, which was the first state to allow recreational use of marijuana, has set a limit of five nanograms per milliliter. In Pennsylvania, the “legal limit” for marijuana is one nanogram per milliliter. A debate is ongoing among scientists as to whether these numbers have any useful meaning with regard to impairment.

Other states, including New Jersey, rely on testimonial evidence to determine whether a drug impaired a defendant’s ability to drive. The New Jersey Supreme Court affirmed a conviction for DWI based on impairment by marijuana in State v. Bealor in 2006. The court held that, while lay opinions as to intoxication by alcohol may be admissible, they are not necessarily admissible for other drugs because the signs of impairment by drugs are not as well-known to the public as the signs of drunkenness. In this case, the arresting officers testified that the defendant’s “eyes were bloodshot and glassy,” that he moved slowly and had slurred speech, and that the smell of “burnt marijuana” emanated from the car. Tests of the defendant’s urine showed the presence of marijuana. These two pieces of evidence, the court held, were enough to support the conviction, even without expert witness testimony.

Under the laws of New Jersey, driving while intoxicated (DWI) is a motor vehicle offense, rather than a criminal offense. A DWI proceeding still resembles a criminal case in many ways. Just as in a criminal case, prosecutors have the burden of proving every element of the offense of DWI beyond a reasonable doubt. DWI trials in New Jersey take place in municipal courts, with the municipal judge hearing the evidence and reaching a verdict. Prosecutors can introduce various forms of evidence, including certain actions and statements by a defendant that indicate a “consciousness of guilt.” Evidence that a defendant believed themselves to be guilty is not enough, by itself, for a conviction, but it can provide strong support for the state’s case. New Jersey courts have developed a series of rules regarding consciousness of guilt in criminal cases in general, and in DWI cases in particular.

Many criminal statutes include a particular mental state, known as mens rea, or “guilty mind,” as an element of the offense that the state must prove. Perhaps the most well-known example is the legal difference between murder and manslaughter. The offense of murder requires proof that a defendant acted with intent, meaning that they intended to kill their victim. Manslaughter involves reckless or negligent conduct by a defendant that results in someone’s death. Evidence of “consciousness of guilt” can support the state’s theory about a defendant’s “guilty mind.” The New Jersey Supreme Court reviewed some types of evidence of consciousness of guilt in a 1993 ruling, State v. Mann. Fleeing or escaping from custody for the purpose of “avoid[ing] accusation [and]…prosecution,” the court held, could be evidence of consciousness of guilt.

The New Jersey DWI statute’s definition of the offense makes no mention of mens rea. The state does not have to prove that a defendant intended to commit DWI, or even that they knew that they were impaired. Municipal judges may still infer consciousness of guilt from certain acts by DWI defendants. State law requires DWI suspects to provide breath samples to police, and it treats refusal as a distinct offense. In certain circumstances, refusal to submit to breath testing could also serve as evidence of consciousness of guilt. The New Jersey Appellate Division ruled that a defendant’s refusal was admissible as evidence in a DWI trial in State v. Tabisz in 1974. The New Jersey Supreme Court further affirmed this in 1987 in State v. Stever.

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