Drunk driving in NJ – what warrant?

Drunk driving in NJ – What warrant?  NJ Supreme court carves out good faith exceptions for police officers obtaining blood samples in a DWI case. 

Most people can recite the truism that “ignorance of the law is no excuse.”  Apparently, that rule can be forgiven if you’re a police officer acting in good faith.  Let’s discuss taking blood samples from a driver suspected of DWI.

DWI (driving while intoxicated) violations in New Jersey mean a finding that your blood alcohol content is over .08% and can be established by a breathalyzer, blood or even a urine test.  Refusal to submit to a breathalyzer carries sanctions of its own due to the NJ Implied Consent Law (N.J.S. 39:4-50.2) (by operating a motor vehicle in the state, you have implicitly consented to submit to a breathalyzer in the event you are pulled over in a motor vehicle for suspicion of driving while intoxicated.)  Refusal to submit to the test means you can also be charged under N.J.S. 39:4-50.4(a).

Notwithstanding your refusal to submit to a breathalyzer, a police officer can still demand you submit to a blood test, which does not require your consent, if the officer believes there is probable cause, and has a warrant.

Or not.

Courts in New Jersey have declared you do not need a warrant to obtain a blood sample if exigent circumstances exist.  Recently, the issue was revisited in State v. Zalcberg (2018).  This case involved an auto accident with a fatality, requiring use of Jaws of Life to remove passenger and driver from vehicle.  Police suspected alcohol use by driver after seeing a small empty liquor bottle in the car.  The officer went to hospital, where driver was taken and demanded a blood sample from nurse.  He waited one hour and was provided same.   The officer claimed was not aware he needed to obtain a warrant for a blood sample, or aware that warrants could be obtained telephonically.

The NJ Supreme Court ruled that an officer does not have to obtain a warrant to get a blood sample from a driver who has been pulled over for probable cause for DWI, if exigent circumstances exist. Prior case law (McNeely/Adkins) had established that exigent circumstances do not include simply the fact that alcohol metabolization will dissipate the blood alcohol content in a person suspected of driving under the influence.  However, in Adkins, the NJ supreme court noted that factor as one that can be considered, among others, to justify exigent circumstances.

In Zalcberg, the court reasoned that the officer’s belief he did not need a warrant, coupled with the extreme seriousness of the accident, the use of the jaws of life machinery, the need to close the public roads and helicopter the passenger and driver to the hospital all could be considered sufficient to justify exigent circumstances.

The Zalcberg case arguably makes it harder to suppress blood alcohol testing obtained without a warrant because it infers that an officer’s mistaken belief is excusable if other factors exist.  In this case, those factors (an accident, the use of specialized equipment to remove passengers from a car) could conceivably exist in any number of car accidents.  In which case, you’ve now created a much larger exception to the warrant rule.  Broad exceptions like this swallow up the rule, leaving far less room to maneuver on a suppression motion.  If the sole category justifying exigent circumstances is that there was a serious accident, then conceptually, every driver is subject to a warrantless blood sample.  In DWI cases, that will have serious repercussions.

DWI cases can result in license suspensions, stiff fines, interlock devices on your car, and even imprisonment.  A strong defense should include forcing the State to prove their case, and challenging each element leading up to the charge.  Was the initial stop justifiable?  Were the tests accurate?  Were you provided with full discovery?  Is it possible to move to suppress evidence? Is the arresting officer’s version of the events consistent with prior ones?  Is there any video footage of field sobriety tests that recount a different version of what happened?

If you are charged with DWI in New Jersey, you should think very carefully before appearing in court without an attorney.  This may be your first offense, you may just want to “settle” it quickly and walk away from the unfortunate experience.  However, even though DWI cases are treated as traffic offenses, they can be quasi-criminal in application depending on the facts.  The repercussions can be staggering and should be discussed with competent counsel well in advance of your appearance.  At the Law Offices of Sadaf Trimarchi, I would be happy to discuss your options and prepare you for court, providing aggressive representation and securing the best outcome available for you.