Implied Consent Statutes Do Not Allow Warrantless Blood Tests, According to Several State Supreme Courts

Many states, including New Jersey, have an “implied consent” statute that allows police, in cases of suspected driving while intoxicated (DWI), to collect samples for chemical testing without first obtaining a search warrant, whether the suspect consents or not. This usually involves collecting a sample of the suspect’s breath, but police may also direct a medical professional to draw a blood sample without a warrant in some circumstances. A 2013 decision from the U.S. Supreme Court significantly limited the ability of police to collect blood samples without a warrant, and several state supreme courts have followed suit. New Jersey continues to allow warrantless blood draws, although they are subject to new restrictions.

Under New Jersey law, anyone “operat[ing] a motor vehicle on any public road, street or highway or quasi-public area” within the state is considered to have consented to providing a breath sample, provided that a police officer has “reasonable grounds” to suspect the person of DWI. The U.S. Supreme Court held, in 1966’s Schmerber v. California, that police may collect a blood sample without a warrant, over a person’s objection, if they believe that there is not enough time to get a warrant before evidence is lost or destroyed. This is known as the “exigent circumstances” exception. New Jersey’s Supreme Court has followed this view, most recently in State v. Adkins in 2013.

The U.S. Supreme Court reversed its Schmerber holding on exigent circumstances in a 2013 decision, Missouri v. McNeely, which held that the mere fact that alcohol metabolizes over time does not constitute exigent circumstances. Since then, several states have revisited their laws regarding warrantless blood testing. The Texas Court of Criminal Appeals, that state’s highest criminal court, ruled in November 2014 in Texas v. Villarreal that a warrantless blood draw without the suspect’s express consent violates the Fourth Amendment, rejecting the state’s argument that the defendant could be deemed to have consented. The court noted that state supreme courts in Idaho, Nevada, Tennessee, South Dakota, and Arizona have also recently concluded that implied consent laws do not justify warrantless blood draws.

New Jersey has, so far, resisted changes to its DWI law based on McNeely. Numerous cases have come before the Superior Court, Appellate Division asking it to apply McNeely retroactively in cases where the arrest occurred before the McNeely decision in April 2013. The New Jersey Supreme Court developed a test for determining whether to apply a new court decision retroactively in State v. Hodge in 2012, which essentially asks whether police have continued enforcing the old rule in good faith, and whether applying the new rule retroactively would have a “significant impact on the administration of justice.”

In most cases, such as State v. Sidorek and State v. Zalcberg, the Appellate Division has held that the pre-McNeely standard used in Adkins should still apply. In some cases, such as State v. Jones and State v. Cassella, the court found alternative grounds for affirming the legality of the blood draw. This may change as cases involving arrests that took place after McNeely make their way through the courts, since the court will not have to consider the retroactivity issue.

Evan M. Levow is a DWI attorney who fights for the rights of people in New Jersey who are facing charges that could significantly affect their lives. At Levow & Associates, we have dedicated our entire law practice to DWI defense, and we are available 24/7 to help you. To schedule a free and confidential consultation with a member of our team, contact us online or at (877) 975-3399.

More Blog Posts:

Court Decision Changes Warning Requirements for New Jersey Police Administering Breath Tests to DWI Suspects, New Jersey DWI Attorney Blog, November 30, 2014

Proposed Bill Would Amend New Jersey DWI Law by Adding “Zero Tolerance” Provisions for Inhalants, New Jersey DWI Attorney Blog, November 27, 2014

Courts Change Procedures for Issuing Warrants After Supreme Court Limits Warrantless Blood Testing of DWI Suspects, New Jersey DWI Attorney Blog, July 2, 2014