Courts Address the Forcible Collection of Samples for Chemical Testing in DWI Cases

In order to prove impairment in a driving while intoxicated (DWI) case, New Jersey prosecutors can present the arresting officer’s testimony about their observations of a defendant and the result of chemical testing that shows a defendant’s blood alcohol content (BAC) shortly after their arrest. Since DWI statutes in all 50 U.S. states create a presumption that a person is impaired if their BAC is 0.08 percent or higher, prosecutors often prefer to present chemical testing results. New Jersey law essentially requires drivers to submit to breath testing, but courts have set limits on when police may collect blood or urine samples. A recent article in the publication Vice documents an incredibly troubling—and frankly, cringe-inducing—practice of collecting urine samples by force.

The U.S. Supreme Court ruled in Schmerber v. California in 1966 that police may collect blood samples without a warrant in DWI cases, although it placed significant limits on that holding in 2013 in Missouri v. McNeely. The New Jersey Appellate Division held in Jiosi v. Township of Nutley in 2000 that Schmerber “did not provide a carte blanche exception to the warrant requirement whenever there is probable cause to believe a suspect is under the influence of alcohol or drugs.”

If police obtain a warrant for a blood or urine sample, the question then becomes which measures they may use to obtain that sample. New Jersey’s implied consent statute holds that anyone who drives on public roads in this state has consented to providing breath samples for BAC testing. It also states, however, that chemical tests cannot “be made or taken forcibly and against physical resistance thereto” by a DWI suspect.

The incident described in the Vice article took place in Indiana in 2009, after a police officer pulled over a driver for allegedly running a stop sign. A breathalyzer test showed BAC of 0.07 percent, less than the “legal limit” for DWI. Despite this, police obtained a search warrant for blood and urine samples. Although a nurse collected a blood sample without any problem, the suspect either “couldn’t” or “wouldn’t” provide a urine sample. Police officers then cuffed him to a bed, and while an officer held his legs, a nurse inserted a catheter. The samples showed an even-lower BAC of 0.05 percent. The man was only charged with reckless driving and, reportedly, obstruction of justice for some reason.

A judge threw out the man’s lawsuit against the city in 2011 on the ground that the police had qualified immunity from civil liability. The Jiosi case in New Jersey presented similar facts and a similar ruling, with the added twist that the hospital requested that police collect a urine sample because their ability to test blood samples was limited. Similar court cases have occurred around the country. With regard to how this practice affects the outcome of a DWI case itself, the Idaho Supreme Court noted in 2011 that “American search-and-seizure law is undeveloped as to when an officer may administer an involuntary warrantless catheterization on a suspect.”

If you are facing alleged DWI charges in a New Jersey court, DWI attorney Evan Levow can help you understand your rights and prepare a strong defense against the state’s charges. To schedule a free and confidential consultation to discuss your case with a skilled and experienced advocate, contact us today online or at (877) 593-1717.

More Blog Posts:

Defendant in DWI Case Has Burden of Proving Inability to Provide Breath Sample, According to New Jersey Court, New Jersey DWI Attorney Blog, August 6, 2016

U.S. Supreme Court to Rule on Constitutionality of Criminal Refusal Statutes, New Jersey DWI Attorney Blog, May 25, 2016

New Jersey Court Reviews State Law Regarding Use of Drug Recognition Evaluators in DWI Cases, New Jersey DWI Attorney Blog, February 26, 2016