Warrantless Blood Draws in New Jersey DWI Cases, Part 2: The Totality of the Circumstances

Police, when investigating suspected driving while intoxicated (DWI) cases in New Jersey, must obtain a warrant, or a suspect’s consent, to collect blood samples under the Fourth Amendment to the U.S. Constitution. The “exigent circumstances” exception allows warrantless searches when taking the time to obtain a warrant would create a significant risk that evidence will be lost or destroyed. New Jersey courts currently look at the “totality of the circumstances” when considering warrantless blood draws. A recent ruling by the New Jersey Supreme Court, State v. Zalcberg, considers this question in light of recent changes to the law and police officers’ accompanying uncertainty.

The New Jersey DWI statute allows the state to prove impairment based solely on a defendant’s blood alcohol content (BAC), making this sort of evidence very important to the state. Time is an important factor, since alcohol breaks down in the bloodstream over time. The U.S. Supreme Court ruled that the gradual dissipation of alcohol, by itself, is not an exigent circumstance for Fourth Amendment purposes in 2013’s Missouri v. McNeely.

In 2015’s State v. Adkins, the New Jersey Supreme Court adopted a rather narrow view of McNeely’s effect on New Jersey DWI cases. Cases decided after McNeely, including cases that were “in the pipeline” at the time McNeely was decided, are bound by that precedent. New Jersey municipal and trial courts could, however, give “substantial weight” to dissipation in determining whether the exigent circumstances should apply. While dissipation could not qualify as an exception to the warrant requirement on its own, the court effectively said that it was a major circumstance among the totality of the circumstances. This became important in Zalcberg.

The defendant in Zalcberg was involved in a two-car accident in 2011, in which a passenger in her vehicle was killed. Emergency medical workers informed police that the defendant “smelled of alcohol” and that they saw a small bottle of alcohol on the console of the vehicle. The police department had a “common practice” at the time of taking blood samples from people involved in serious car accidents. The officer sent to obtain a blood sample from the defendant was reportedly made to wait for almost an hour by hospital staff. They obtained the sample without a warrant or the defendant’s consent. Warrants were available by telephone at the time, but the officers at the hospital were apparently not aware of this.

The trial court granted the defendant’s motion to suppress the blood sample evidence based on McNeely, which was decided while the motion was pending. The Appellate Division reversed the decision in 2014, citing its own decision in Adkins, which would later be reversed by the New Jersey Supreme Court. The trial court granted another motion to suppress, which the Appellate Division affirmed in 2016.

The New Jersey Supreme Court reversed the Appellate Division in March 2018 in a 5-2 decision, holding that “the totality of the circumstances evince[s] an objective exigency.” The court gave substantial weight to the officers’ lack of knowledge about telephonic warrants and their pre-McNeely belief that they did not need a warrant. The dissenting justices stated that the majority had failed to follow both McNeely and Adkins, and they criticized the majority’s reliance on the officers’ lack of knowledge.

DWI lawyer Evan Levow defends people charged with DWI after a forced blood draw in the municipal courts of New Jersey. He can help you understand your rights and guide you through the court process. You can contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our knowledgeable and experienced team.

More Blog Posts:

Evidence in New Jersey DWI Cases, Part 3: Consciousness of Guilt, New Jersey DWI Attorney Blog, February 17, 2018

New Jersey Appellate Court Reverses DWI Conviction Based on Warrantless Blood Draw, New Jersey DWI Attorney Blog, November 30, 2017

Defendant in New Jersey DWI Case Challenges Conviction of “Per Se” DWI, New Jersey DWI Attorney Blog, September 6, 2017


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