New Jersey’s driving while intoxicated (DWI) statute allows the state to prove that a defendant was impaired by alcohol with the results of blood alcohol content (BAC) testing. A BAC of 0.08 percent or higher creates a legal presumption of impairment. Police can determine BAC by testing a sample of breath, blood, or urine. Breath testing is considered to be the least intrusive. Blood and urine tests must follow the rules established by the Fourth Amendment for searches. A defendant can challenge the admissibility of BAC evidence by establishing a violation of their Fourth Amendment rights. A 2013 U.S. Supreme Court decision specifically addressed warrantless blood draws in DWI cases. The New Jersey Appellate Division cited that decision earlier this year in State v. Smijean, reversing a DWI conviction that involved BAC evidence from a warrantless blood draw.
Breath testing for BAC requires a person to blow into a tube attached to a testing device commonly known as a breathalyzer. Most New Jersey police departments use a device known as an Alcotest. Submission of a breath sample is mandatory for anyone who drives on a public road in New Jersey, and refusal to submit a breath sample upon request by law enforcement is a separate motor vehicle offense.
Since breath testing only requires blowing into a tube, it is not considered a “search” under the Fourth Amendment. Blood testing, however, is considered intrusive enough to fall under the Fourth Amendment’s prohibition on warrantless searches. Drawing a person’s blood therefore requires that person’s consent or a warrant issued by a judge. In a general sense, police may be able to conduct a search without a warrant if they can establish that “exigent circumstances” made it impractical to obtain a warrant first, usually because of the risk of loss or destruction of evidence. How this exception applies in DWI cases has been a matter of dispute.
The Supreme Court issued a ruling in 1966, Schmerber v. California, holding that police may conduct a blood draw without a warrant or consent under the exigent circumstances exception. The court noted that “the percentage of alcohol in the blood begins to diminish shortly after drinking stops,” and it found that the officer “might reasonably have believed that he was confronted with an emergency” that made obtaining a warrant impractical. The court substantially limited the Schmerber ruling in 2013’s Missouri v. McNeely, however, holding that “the natural metabolization of alcohol in the bloodstream” is not, by itself, an exigent circumstance.
In January 2013—two months before the McNeely decision was issued—the defendant in Smiejan struck two parked cars while driving and was transported to the hospital for minor injuries. A blood sample was taken at the hospital with neither his consent nor a warrant. It showed a BAC of 0.286 percent. He moved to suppress the BAC results, but the municipal court denied the motion.
The municipal court judge acknowledged that, by that time, McNeely applied to the case, but he ruled that exigent circumstances existed. The Law Division affirmed, noting “the difficulties inherent in the middle of the afternoon in the middle of the week” to obtain a search warrant. The Appellate Division reversed these rulings, finding that the exigencies they identified were fully rebutted by McNeely.
If you are facing a DWI charge in a New Jersey municipal court, DWI attorney Evan Levow can help you understand your rights and advocate for you in court. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation to see how our experienced and skilled team can help you.
More Blog Posts:
Defendant Consented to Warrantless Blood Draw Shortly After Car Accident, New Jersey Court Finds, New Jersey DWI Attorney Blog, August 24, 2017
Appellate Court Ruling on Blood Testing for Drugs Likely to Affect New Jersey DWI Cases, New Jersey DWI Attorney Blog, August 22, 2017
U.S. Supreme Court Rules on Warrantless Breath and Blood Tests in DWI Cases, New Jersey DWI Attorney Blog, August 20, 2017