Defendant Consented to Warrantless Blood Draw Shortly After Car Accident, New Jersey Court Finds

Under 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.

The defendant in Milkosky was involved in a single-car accident. The court’s opinion describes a scene that resembles a movie. Police claim that they found the defendant’s vehicle upside-down, with the defendant unconscious and suspended by her seat belt. Officers removed the defendant shortly before fire engulfed the vehicle. They reportedly noticed the odor of alcohol, and a police detective was assigned to investigate.

The detective visited the defendant in the hospital after she regained consciousness. She reportedly asked the detective to contact a friend who was expecting her. He testified that she gave her consent to a blood draw when he asked. The defendant later moved to suppress the BAC evidence, arguing that she had not given effective consent. The municipal court denied the motion, and she appealed.

The Appellate Division cited another U.S. Supreme Court decision, 2016’s Birchfield v. North Dakota, which held that a consent to a search “need not be express but may be fairly inferred from context.” The court noted that the defendant answered the detective’s questions and was able to provide him with her friend’s name and contact information. The court then cited a 1994 decision from the Appellate Division, State v. Warmbrun, in which a “very intoxicated” defendant was found to have voluntarily waived his Miranda rights because “he was capable of communicating and … was responsive in answering questions.” Based on these examples, it found that the defendant had presented no basis for reversing the lower courts’ conclusion that she had voluntarily consented to the blood draw.

DWI attorney Evan Levow has defended people in New Jersey against drunk driving charges for more than two decades. Contact us today online or at (877) 593-1717 to schedule a free and confidential consultation with a knowledgeable and experienced advocate.

More Blog Posts:

New Jersey Appellate Court Considers Warrantless Blood Draw and Credibility Questions in DWI Case, New Jersey DWI Attorney Blog, November 14, 2016

Courts Address the Forcible Collection of Samples for Chemical Testing in DWI Cases, New Jersey DWI Attorney Blog, October 23, 2016

U.S. Supreme Court to Rule on Constitutionality of Criminal Refusal Statutes, New Jersey DWI Attorney Blog, May 25, 2016


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