Blood Testing

April 2, 2015

Driver Charged with DWI-Related Offense Despite Breath Test Results Below 0.08%, Based on “Totality of the Circumstances”

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.

January 9, 2015

Implied Consent Statutes Do Not Allow Warrantless Blood Tests, According to Several State Supreme Courts

by Evan M. Levow

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

November 27, 2014

Proposed Bill Would Amend New Jersey DWI Law by Adding “Zero Tolerance” Provisions for Inhalants

by Evan M. Levow

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

July 2, 2014

Courts Change Procedures for Issuing Warrants After Supreme Court Limits Warrantless Blood Testing of DWI Suspects

by Evan M. Levow

A decision issued by the U.S. Supreme Court last year limits the ability of police to take a blood sample from a DWI suspect without consent or a warrant. Missouri v. McNeely, 133 S.Ct. 1552 (2013). The Fourth Amendment protects people from unreasonable searches and seizures, and generally requires law enforcement to obtain a warrant before searching private property. Police can claim “exigent circumstances” to justify a warrantless search, meaning that in a specific emergency situation, they cannot take the time to obtain a warrant. The McNeely case addressed claims by police that the human body’s process of metabolizing alcohol was an exigent circumstance that justified taking a blood sample without a warrant. In response to the decision, the New Jersey Supreme Court has modified its procedures for search warrant requests to ensure that judges are available to issue warrants.

The defendant in McNeely was stopped by a highway patrolman for speeding. The officer claims that defendant did not perform well in a field sobriety test, and he refused a breath test. En route to the police station, the defendant refused a breath test again, so the officer diverted to a hospital and directed a hospital technician to take a blood sample. The defendant did not consent to having blood drawn, and the officer did not obtain a warrant. Lab testing showed blood alcohol content (BAC) of 0.154 percent, almost twice the legal limit of 0.08 percent.

The state charged the defendant with driving while intoxicated, but the court granted the defendant’s motion to suppress. It held that the warrantless blood test violated his Fourth Amendment rights. When the Missouri Supreme Court affirmed the decision, the U.S. Supreme Court took the case in order to resolve a conflict with its own prior decision in Schmerber v. California, 384 U.S. 757 (1966). That case held that an officer might reasonably conclude that the breakdown of alcohol in the bloodstream constituted “exigent circumstances,” id. at 770-71, but limited its holding to the specific circumstances of the case. In McNeely, the court rejected establishing a “per se rule” that alcohol metabolism justifies a warrantless blood test. 133 S.Ct. at 1561. Continue reading