Blood Testing

January 24, 2017

DWI Case Alleges Impairment by Caffeine, Rather than Alcohol

The 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.

November 14, 2016

New Jersey Appellate Court Considers Warrantless Blood Draw and Credibility Questions in DWI Case

by Evan M. Levow

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.

October 23, 2016

Courts Address the Forcible Collection of Samples for Chemical Testing in DWI Cases

by Evan M. Levow

In 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.

May 25, 2016

U.S. Supreme Court to Rule on Constitutionality of Criminal Refusal Statutes

by Evan M. Levow

The 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.”

December 29, 2015

Federal Agency Calls for Further Lowering of the Legal BAC Limit in DWI Cases

by Evan M. Levow

Laws in all 50 U.S. states, the District of Columbia, and Puerto Rico state that a person who drives with a blood alcohol content (BAC) of 0.08 percent or higher is presumed to have committed the offense of driving while intoxicated (DWI). This “legal limit” for BAC may be lower for certain individuals, including people under the age of 21, school bus drivers, and commercial truckers. Laws against DWI have existed for almost as long as the automobile itself, but the use of BAC as an indicator of impairment is much more recent. The National Transportation Safety Board (NTSB), the federal agency that investigates major accidents and makes safety recommendations, has recommended lowering the legal limit even further, to 0.05 percent. This has met with opposition from unexpected sources and has failed to gain much traction among state lawmakers.

New Jersey was one of the first states to enact a law against DWI. The law, passed in 1906, simply stated that “[n]o intoxicated person shall drive a motor vehicle.” Current law in this state, of course, goes into much more detail. A first DWI offense with BAC of at least 0.08 percent, but less than 0.10 percent, is subject to penalties that might include a fine between $250 and $400, up to 30 days’ imprisonment, and a three-month license suspension. Penalties are higher if the BAC is 0.10 percent or above, or for a second or subsequent offense. BAC evidence is not necessary for a New Jersey court to convict someone of DWI, but it is a prominent part of many, possibly most, DWI cases.

The NTSB has recommended lowering the legal BAC limit to 0.05 percent since at least 2013. It issued a report in April of that year with multiple proposed legislative changes, including a 0.05 percent legal limit. NTSB officials have repeated this recommendation several times since then, most recently in mid-December 2015. Supporters claim that it will further reduce the number of traffic fatalities, while others say that a lower BAC limit is unlikely to have such an effect. Mothers Against Drunk Driving (MADD) came out against the recommendation in 2013, saying it would be a “waste of time.”

December 22, 2015

Judge Dismisses DWI Charge Because of Driver’s Rare Medical Condition

by Evan M. Levow

In order to prove that a person has committed the offense of driving while intoxicated (DWI), the state must prove impairment by alcohol or another intoxicating substance. Prosecutors can do this in several ways, including blood alcohol content (BAC) based on a blood or breath test. A BAC of 0.08 percent or higher is presumed to be evidence of impairment. It is possible for a court to convict a person of DWI in the absence of BAC evidence, or even with a BAC that is below 0.08 percent, based on other evidence of impairment. Could a person with a BAC above 0.08 percent, on the other hand, overcome the presumption of impairment? A recent case out of New York shows how a rare medical condition led to an unusually high BAC result, although this is not likely to be a common defense.

New Jersey’s DWI statute specifically mentions a BAC of 0.08 percent or above in its definition of the offense, but it also states that a person commits DWI if they drive “while under the influence of intoxicating liquor” or a similar substance. Drivers in New Jersey are subject to the implied consent law regarding breath testing, meaning that they can be penalized for refusing to submit a breath sample. Even without BAC evidence, prosecutors may prove impairment through other means, such as field sobriety tests performed during a traffic stop. An officer can testify about observations like slurred speech or an alcohol odor. If the state has BAC test results above the legal limit, however, prosecutors may not bother with an officer’s testimony as much, which appears to have been a factor in the recent New York case.

According to local news coverage, police in the Buffalo, New York area stopped a 35-year-old schoolteacher one evening in October 2014, based on a 911 caller’s report of a vehicle driving erratically. The officer claimed to have smelled alcohol and stated that the defendant’s speech was slurred, and her eyes appeared “bloodshot” and “glassy.” The defendant reportedly admitted to having three cocktails several hours earlier. Her BAC test results, however, showed 0.33 percent, which is over four times the legal limit and close to the point of medical emergency. Despite this result, her condition did not match that of someone about to go into a coma.

October 26, 2015

City Faces Massive Backlog of Untested Blood Samples, Potentially Delaying DWI Prosecutions

by Evan M. Levow

A Texas city is facing a major backlog of blood samples collected in driving while intoxicated (DWI) cases. San Antonio subjects DWI suspects to mandatory blood draws if they refuse to submit a breath sample. Police use breath or blood samples to determine blood alcohol content (BAC). A BAC level of 0.08 percent or higher is legally presumed to be evidence of intoxication, although BAC evidence is not always essential to a prosecutor’s case. The backlog does not appear to be causing a delay in pending DWI cases, at least according to local prosecutors. The U.S. Constitution, however, guarantees defendants a right to a speedy trial, so backlogs in the processing of evidence are always cause for concern.

Bexar County, Texas, whose jurisdiction includes San Antonio, had a contract with a private laboratory to test blood samples in DWI cases. The District Attorney (DA) canceled the contract shortly after taking office in early 2015. A series of documentation errors by the laboratory called hundreds of DWI cases into question. This included the alleged mislabeling of up to 350 blood samples, first discovered in 2014. The county now faces a backlog of over 1,000 samples, with no efficient means of testing them.

New Jersey DWI law, we should note, differs from Texas law with regard to blood draws. Multiple Texas cities have enacted “no refusal” policies that mandate blood draws from all DWI suspects who refuse a breath test. San Antonio expanded this policy from weekend traffic stops to all traffic stops in 2011. New Jersey drivers are subject to the implied consent statute for breath testing, meaning that anyone driving on New Jersey roads has, solely by virtue of driving, consented to providing a breath sample to a police officer who suspects DWI. This statute does not apply to blood samples. Police may still compel a person in New Jersey to submit a blood sample without a warrant, however, in certain circumstances.

October 5, 2015

Medical Marijuana Patient Acquitted of DWI

by Evan M. Levow

The offense of driving while intoxicated (DWI) includes more than just alcohol. Almost any drug that causes an impairment can lead to a DWI charge. The law in New Jersey and other states specifically sets a “legal limit” for blood alcohol content (BAC), but it does not always specify an amount for other substances. Different substances also require different tests, and not all tests are reliable. A driver charged with DWI in Colorado due to a positive marijuana test recently obtained an acquittal after she argued that the marijuana test cannot prove that she was impaired at the time she was driving. Colorado law is significantly different from New Jersey law on this issue, but this state’s law is gradually changing.

Colorado is one of a handful of states to have effectively legalized marijuana for both medical and recreational use. In New Jersey, marijuana remains a Schedule I controlled substance, except for some narrow exceptions allowed by the New Jersey Compassionate Use Medical Marijuana Act (CUMMA). The defendant in the Colorado case reportedly moved to that state specifically so that she could use marijuana for her chronic back pain. An officer pulled her over in June 2014, not for erratic driving but for an expired license plate tag. After noticing the smell of marijuana, the officer required her to perform field sobriety tests, which she allegedly failed. A blood test showed a marijuana level of 19 nanograms, well above the state’s limit of five nanograms.

Prosecutors charged the defendant with DWI. They offered her a plea deal, which she reportedly rejected because it would require her to give up her medical marijuana card for up to two years. The case went to a jury trial, which is allowed in Colorado, unlike New Jersey. She argued that her test results were not conclusive evidence that she was impaired at the time she was driving her vehicle, since THC, the active component of marijuana, lingers in the bloodstream far longer than alcohol or other substances. While a blood test to determine BAC might indicate that a person recently consumed alcohol, she argued, a blood test for marijuana cannot tell whether or not a person is actually impaired. The jury agreed and nullified the charges.

September 24, 2015

Blood Testing in New Jersey DWI Cases

by Evan M. Levow

In 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%.

August 12, 2015

New Jersey Supreme Court Retroactively Applies 2013 U.S. Supreme Court Ruling on Forced Blood Draws in DWI Cases

by Evan M. Levow

The New Jersey Supreme Court (NJSC) recently reversed a decision by the Superior Court, Appellate Division regarding a warrantless blood draw in a DWI case. The decision, State v. Adkins, applied a 2013 ruling by the U.S. Supreme Court (USSC), Missouri v. McNeely. Many courts had allowed police to take blood samples from DWI suspects without a warrant under the “exigent circumstances” exception to the Fourth Amendment’s search-warrant requirement, based on the fact that alcohol breaks down in the bloodstream over time. The USSC ruled in McNeely that “the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” In Adkins, the NJSC ruled that McNeely “must apply retroactively to cases that were in the pipeline” at the time of the USSC’s ruling. It reversed the Appellate Division’s ruling but remanded the case for further proceedings regarding whether other “exigencies” might have been present.

The defendant in Adkins was involved in a single-car accident in December 2010 and was arrested on suspicion of DWI. The court noted that police, for unknown reasons, did not collect a breath sample from the defendant, even though an Alcotest device was available. Instead, they took the defendant to a hospital for a blood draw. Police claimed that the defendant did not object to the blood draw, but the state did not contend that he consented to the procedure.

The USSC ruled in 1966’s Schmerber v. California that forced, warrantless blood draws in DWI cases do not violate the Fifth Amendment privilege against self-incrimination, and they may be justified by the “exigent circumstances” exception to the Fourth Amendment. The court did not, however, address specific “exigencies.” McNeely narrowed Schmerber’s scope by excluding alcohol metabolism as an exigent circumstance.