Warrantless Blood Draws in New Jersey DWI Cases, Part 1: Exigent Circumstances

New Jersey’s driving while intoxicated (DWI) statute allows law enforcement officials to obtain breath samples, for the purpose of measuring a suspect’s blood alcohol concentration (BAC), without a warrant. The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant, supported by probable cause, before conducting a search. Multiple courts, however, have held that the collection of breath samples falls under an exception to the warrant requirement. One way to explain why a warrant is not required is that people do not have a reasonable expectation of privacy in the contents of their breath. This may seem a bit trite, but it makes some sense when compared to another method of measuring BAC, blood testing. Collection of a blood sample is indisputably invasive, so courts have held that a warrant is required in most cases.

Police do not have to obtain a warrant before conducting a search, according to a long line of court decisions, if “exigent circumstances” exist that risk the imminent loss or destruction of evidence. If, for example, a police officer has reason to believe that a person inside a residence is about to destroy contraband, such as by flushing it down the toilet, courts have held that they may enter the residence for the purpose of securing the contraband. The authority of police officers to search a vehicle without a warrant, known as the vehicular exception, is based on the same principle as exigent circumstances. Since a car is mobile, waiting to obtain a warrant risks the suspect fleeing the scene. An officer must still have probable cause to believe that the car contains contraband or evidence of a crime, but they do not necessarily have to have a warrant.

Drawing blood from a DWI suspect without a warrant, in order to test their BAC, has been justified by exigent circumstances in the past. The U.S. Supreme Court allowed this in its ruling in Schmerber v. California in 1966. The court significantly limited this practice, however, in a 2013 ruling, Missouri v. McNeely. Prosecutors had argued that the human body’s natural process of metabolizing alcohol, meaning that a person’s BAC steadily decreases over time, was an exigent circumstance allowing a warrantless blood draw. The Supreme Court rejected this argument. While it may still be possible to justify a warrantless blood draw based on exigent circumstances, the breakdown of alcohol in the bloodstream cannot, by itself, serve that purpose.

The New Jersey Supreme Court adopted the McNeely ruling in State v. Adkins in 2015, but not necessarily retroactively. McNeely allowed a consideration of the breakdown of alcohol over time as one part of a “totality of the circumstances” analysis. The New Jersey court found that it was required by law to retroactively apply the McNeely ruling to any cases “that were in the pipeline when it was decided.” However, the court stated that, in evaluating challenges to warrantless blood draws citing McNeely, lower courts could give “substantial weight to the perceived dissipation that an officer reasonably faced.” Dissipation therefore remains a factor in New Jersey DWI cases in which blood tests are analyzed, but it cannot be the only factor.

DWI attorney Evan Levow fights for the rights of people facing DWI charges in New Jersey courts. He can prepare a strategic defense for your case and guide you through the court process. To schedule a free and confidential consultation with a member of our experienced and knowledgeable team, contact us today online or at (877) 593-1717.

More Blog Posts:

New Jersey DWI Laws Unclear on “Driving While Stoned”, New Jersey DWI Attorney Blog, May 15, 2018

Evidence in New Jersey DWI Cases, Part 2: Chemical Testing, New Jersey DWI Attorney Blog, December 28, 2017

Few Consistent Legal Standards Exist for DWI Cases Involving Marijuana, New Jersey DWI Attorney Blog, October 15, 2017