Articles Posted in Blood Testing

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.”

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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.”

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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.

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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.

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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.

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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%.

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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.

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A person’s blood alcohol content (BAC) at the time of an arrest for suspected driving while intoxicated (DWI) is not the only factor police and prosecutors may take into account. Numerous other factors come into play, and a person could be charged with DWI or related offenses even if chemical testing shows a low BAC. This was demonstrated by the recent arrest of a man for intoxication manslaughter, despite a breath test reportedly showing BAC below the legal limit. Defending a case without BAC evidence, or with BAC results that are less than 0.08 percent, presents different challenges than a case that relies on breath or blood testing.

Police arrested a man in Austin, Texas in mid-January 2015 after the pickup truck he was driving allegedly collided with another vehicle at about 1:40 a.m. The driver of the other vehicle was pronounced dead at the scene. The driver of the pickup truck allegedly told officers that he had had two beers at a bar earlier. He also allegedly admitted running a stop sign immediately before the collision.

A portable breathalyzer test showed a BAC of 0.07 percent, below the legal limit of 0.08 percent. Officers at the scene, however, stated that they observed enough other factors to conclude that he was legally impaired, and that probable cause existed to charge him with intoxication manslaughter, a specific offense under Texas law. The fact that this case involved a fatality undoubtedly played a role in the decision to charge the driver with an alcohol-related offense despite the BAC results, but the state is not required to demonstrate a BAC of 0.08 percent or higher to prove DWI in all cases. This is true in New Jersey as well as Texas.

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Many states, including New Jersey, have an “implied consent” statute that allows police, in cases of suspected driving while intoxicated (DWI), to collect samples for chemical testing without first obtaining a search warrant, whether the suspect consents or not. This usually involves collecting a sample of the suspect’s breath, but police may also direct a medical professional to draw a blood sample without a warrant in some circumstances. A 2013 decision from the U.S. Supreme Court significantly limited the ability of police to collect blood samples without a warrant, and several state supreme courts have followed suit. New Jersey continues to allow warrantless blood draws, although they are subject to new restrictions.

Under New Jersey law, anyone “operat[ing] a motor vehicle on any public road, street or highway or quasi-public area” within the state is considered to have consented to providing a breath sample, provided that a police officer has “reasonable grounds” to suspect the person of DWI. The U.S. Supreme Court held, in 1966’s Schmerber v. California, that police may collect a blood sample without a warrant, over a person’s objection, if they believe that there is not enough time to get a warrant before evidence is lost or destroyed. This is known as the “exigent circumstances” exception. New Jersey’s Supreme Court has followed this view, most recently in State v. Adkins in 2013.

The U.S. Supreme Court reversed its Schmerber holding on exigent circumstances in a 2013 decision, Missouri v. McNeely, which held that the mere fact that alcohol metabolizes over time does not constitute exigent circumstances. Since then, several states have revisited their laws regarding warrantless blood testing. The Texas Court of Criminal Appeals, that state’s highest criminal court, ruled in November 2014 in Texas v. Villarreal that a warrantless blood draw without the suspect’s express consent violates the Fourth Amendment, rejecting the state’s argument that the defendant could be deemed to have consented. The court noted that state supreme courts in Idaho, Nevada, Tennessee, South Dakota, and Arizona have also recently concluded that implied consent laws do not justify warrantless blood draws. Continue reading

A New Jersey Senate committee has approved a bill that would amend the state’s driving while intoxicated (DWI) statute to more specifically address driving while under the influence of inhalants. Supporters dubbed the bill “Kimmie’s Law,” after a teenager who died after a car accident with a driver who had allegedly “huffed” dust cleaner. While New Jersey’s DWI statute identifies specific levels of alcohol intoxication, it does not do so for other substances. Testing for inhalants is especially difficult, since the chemicals are not detectable in the bloodstream for long. The proposed bill would make it an offense to drive with any amount of an inhalant in one’s blood. “Huffing” is undoubtedly a serious health problem, particularly among young people who use it as a cheap way of getting high. Applying a “zero tolerance” approach in a criminal statute in this manner, however, presents its own problems.

New Jersey law does not currently provide a distinct definition of “inhalant.” The New Jersey Code of Criminal Justice prohibits “inhal[ing] the fumes of any toxic chemical” for the purpose of intoxication, or possessing a toxic chemical for that purpose. The DWI statute includes the word “inhalant” among a non-exclusive list of substances that can release “toxic vapors or fumes for the purpose of inducing a condition of intoxication.” Examples provided by both statutes include “any glue,” as well as chemicals found in many household cleaning products.

The accident that gave the bill its name occurred in 2007, when an 18-year-old driver veered off the road and collided with a street sign. Her 16-year-old passenger sustained fatal injuries. According to a toxicology report, the driver was under the influence of an inhalant at the time of the accident. The driver eventually pleaded guilty to recklessly causing bodily injury to a passenger. The state also charged her with vehicular homicide, but not DWI. The prosecutor in the case said that it was impossible to prove with “scientific certainty” that the driver met the statutory requirements for “intoxication.” Continue reading

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