New Jersey’s “implied consent” law requires individuals to take a breath test if they are arrested for suspicion of DUI.  New Jersey law requires that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, then you consent to taking a chemical test of your breath for the purpose of determining your blood alcohol content (“BAC”).  The law is set forth at N.J.S.A. 39:4-50.2(a), which provides,

Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of [New Jersey’s DUI statute].

There is no implied consent in New Jersey to provide a blood sample.  Parenthetically, there is also no implied consent to participate in Standardized Field Sobriety Tests or a Drug Recognition Evaluation (“DRE”).  As a result, if an individual is arrested for suspicion of driving while intoxicated he/she is not required to consent to provide a blood sample.

In the absence of consent, may an arresting officer force an individual to provide a blood sample when the individual is arrested for suspicion of DUI?  On April 17, 2013, in Missouri v. McNeely, 569 U.S.        (2013), the United States Supreme Court determined that either a consent, exigency or a warrant is required before police may draw blood from an individual.

In McNeely, Missouri police stopped Tyler McNeely’s truck for speeding and crossing the center line.  Mr. McNeeely subsequently declined to take a breath test to measure his BAC. Mr. McNeeely was arrested and taken to a hospital where he refused to consent to have his blood drawn at the hospital.  The arresting officer directed a lab technician to take a sample of Mr. McNeely’s blood, but did not make any attempt to secure a search warrant. Mr. McNeely’s BAC tested above the legal limit and he was charged with driving while intoxicated.

The trial court held that the exigency exception to the warrant requirement did not apply.  The court held that Mr. McNeely’s blood alcohol dissipating was not, in and of itself, sufficient to establish exigency and, therefore, the test results were suppressed. The Missouri Supreme Court later affirmed.

The U.S. Supreme Court declined to announce a per se rule.  Rather, the Court looked to the “totality of circumstances.” The Court found that blood testing is different in critical respects from other destruction-of-evidence cases because BAC evidence naturally dissipates “gradually and relatively predictably”.  The officer is also faced with certain inherent delays that cannot be avoided even if a warrant is not obtained.  The Court noted that “because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant.”  The inherent delays were considered against technological advances in obtaining search warrants: “Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.”  (New Jersey authorizes the utilization of telephonic warrants, State v. Valencia, 93 N.J. 126 (1983), and there is no exigency requirement in order to obtain a telephonic warrant, State v. Pena-Flores, 198 N.J. 6, 35-36 (2009).)

In consideration of those factors, the Court held that circumstances may make obtaining a warrant impractical such that dissipation will support a finding of exigency, but such analysis should be done on a fact specific, case-by-case basis:  In “drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

The entirety of the United States Supreme Court Decision in Missouri v. McNeely can be viewed here.

Mark W. Catanzaro and Daniel M. Rosenberg are defense attorneys who practice criminal and civil law in New Jersey, New York and Pennsylvania.   Mr. Catanzaro and Mr. Rosenberg provide legal assistance and defense to individuals charged with crimes, felonies, offenses, misdemeanors and quasi-criminal actions, including driving while intoxicated (DWI or “drunk driving”) and driving under the influence (DUI) of drugs or controlled dangerous substances.  For legal assistance or representation, Mr. Catanzaro and Mr. Rosenberg can be contacted at (609) 261-3400.