Articles Posted in Blood Testing

by

New Jersey’s driving while intoxicated (DWI) statute allows law enforcement officials to obtain breath samples, for the purpose of measuring a suspect’s blood alcohol concentration (BAC), without a warrant. The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant, supported by probable cause, before conducting a search. Multiple courts, however, have held that the collection of breath samples falls under an exception to the warrant requirement. One way to explain why a warrant is not required is that people do not have a reasonable expectation of privacy in the contents of their breath. This may seem a bit trite, but it makes some sense when compared to another method of measuring BAC, blood testing. Collection of a blood sample is indisputably invasive, so courts have held that a warrant is required in most cases.

Police do not have to obtain a warrant before conducting a search, according to a long line of court decisions, if “exigent circumstances” exist that risk the imminent loss or destruction of evidence. If, for example, a police officer has reason to believe that a person inside a residence is about to destroy contraband, such as by flushing it down the toilet, courts have held that they may enter the residence for the purpose of securing the contraband. The authority of police officers to search a vehicle without a warrant, known as the vehicular exception, is based on the same principle as exigent circumstances. Since a car is mobile, waiting to obtain a warrant risks the suspect fleeing the scene. An officer must still have probable cause to believe that the car contains contraband or evidence of a crime, but they do not necessarily have to have a warrant.

Drawing blood from a DWI suspect without a warrant, in order to test their BAC, has been justified by exigent circumstances in the past. The U.S. Supreme Court allowed this in its ruling in Schmerber v. California in 1966. The court significantly limited this practice, however, in a 2013 ruling, Missouri v. McNeely. Prosecutors had argued that the human body’s natural process of metabolizing alcohol, meaning that a person’s BAC steadily decreases over time, was an exigent circumstance allowing a warrantless blood draw. The Supreme Court rejected this argument. While it may still be possible to justify a warrantless blood draw based on exigent circumstances, the breakdown of alcohol in the bloodstream cannot, by itself, serve that purpose.

Continue reading

by

New Jersey’s driving while intoxicated (DWI) statute is not limited to impairment due to alcohol. The text of the statute also includes “narcotic, hallucinogenic or habit-producing drug[s]” as substances that could cause impairment. The statute specifies a measurable amount of alcohol in one’s system that creates a presumption of impairment, but it does not do the same for any other drugs. This requires prosecutors to rely largely on eyewitness evidence from arresting officers, who may or may not have training in recognizing the signs of impairment by specific substances. If the alleged substance is illegal under state or federal drug laws, this might assist prosecutors. As more and more states pass laws allowing the use of marijuana for medical or recreational purposes, though, the issue is becoming more complicated. New Jersey may consider legislation to allow recreational marijuana use later in 2018, so law enforcement will have to address this issue soon.The New Jersey DWI statute establishes two methods of proving impairment. One method, sometimes known as “per se DWI,” presumes impairment if a defendant’s blood alcohol content (BAC) was at least 0.08 percent soon after they were allegedly operating a motor vehicle. The “implied consent” statute authorizes police to collect breath samples from anyone driving on New Jersey roads upon suspicion of DWI, and it makes refusal a separate traffic offense. Blood and urine samples may also indicate BAC, but these usually require a warrant or consent. The lack of any statutory guidelines for any drug other than alcohol means that prosecutors must pursue the other form of DWI, which requires proof of driving “while under the influence” of any of the list of substances mentioned earlier. Unlike BAC levels, this is a much more subjective question.

Some states have laws or regulations that specify an amount of marijuana, or other drugs, in one’s system that creates a presumption of impairment. For marijuana, the measurement is in nanograms of THC, the active component of marijuana, per milliliter of blood. Colorado, which was the first state to allow recreational use of marijuana, has set a limit of five nanograms per milliliter. In Pennsylvania, the “legal limit” for marijuana is one nanogram per milliliter. A debate is ongoing among scientists as to whether these numbers have any useful meaning with regard to impairment.

Other states, including New Jersey, rely on testimonial evidence to determine whether a drug impaired a defendant’s ability to drive. The New Jersey Supreme Court affirmed a conviction for DWI based on impairment by marijuana in State v. Bealor in 2006. The court held that, while lay opinions as to intoxication by alcohol may be admissible, they are not necessarily admissible for other drugs because the signs of impairment by drugs are not as well-known to the public as the signs of drunkenness. In this case, the arresting officers testified that the defendant’s “eyes were bloodshot and glassy,” that he moved slowly and had slurred speech, and that the smell of “burnt marijuana” emanated from the car. Tests of the defendant’s urine showed the presence of marijuana. These two pieces of evidence, the court held, were enough to support the conviction, even without expert witness testimony.

Continue reading

by

Under the laws of New Jersey, driving while intoxicated (DWI) is a motor vehicle offense, rather than a criminal offense. A DWI proceeding still resembles a criminal case in many ways. Just as in a criminal case, prosecutors have the burden of proving every element of the offense of DWI beyond a reasonable doubt. DWI trials in New Jersey take place in municipal courts, with the municipal judge hearing the evidence and reaching a verdict. Prosecutors can introduce various forms of evidence, including certain actions and statements by a defendant that indicate a “consciousness of guilt.” Evidence that a defendant believed themselves to be guilty is not enough, by itself, for a conviction, but it can provide strong support for the state’s case. New Jersey courts have developed a series of rules regarding consciousness of guilt in criminal cases in general, and in DWI cases in particular.

Many criminal statutes include a particular mental state, known as mens rea, or “guilty mind,” as an element of the offense that the state must prove. Perhaps the most well-known example is the legal difference between murder and manslaughter. The offense of murder requires proof that a defendant acted with intent, meaning that they intended to kill their victim. Manslaughter involves reckless or negligent conduct by a defendant that results in someone’s death. Evidence of “consciousness of guilt” can support the state’s theory about a defendant’s “guilty mind.” The New Jersey Supreme Court reviewed some types of evidence of consciousness of guilt in a 1993 ruling, State v. Mann. Fleeing or escaping from custody for the purpose of “avoid[ing] accusation [and]…prosecution,” the court held, could be evidence of consciousness of guilt.

The New Jersey DWI statute’s definition of the offense makes no mention of mens rea. The state does not have to prove that a defendant intended to commit DWI, or even that they knew that they were impaired. Municipal judges may still infer consciousness of guilt from certain acts by DWI defendants. State law requires DWI suspects to provide breath samples to police, and it treats refusal as a distinct offense. In certain circumstances, refusal to submit to breath testing could also serve as evidence of consciousness of guilt. The New Jersey Appellate Division ruled that a defendant’s refusal was admissible as evidence in a DWI trial in State v. Tabisz in 1974. The New Jersey Supreme Court further affirmed this in 1987 in State v. Stever.

Continue reading

by

The state has the burden of proving guilt beyond a reasonable doubt in New Jersey driving while intoxicated (DWI) cases. A defense attorney’s job, in part, is to identify defects or deficiencies in the state’s case. DWI cases often require a considerable amount of documentation. Under the DWI statute, a person is guilty of DWI if they operate a vehicle while under the influence of alcohol or drugs, or while their blood alcohol concentration (BAC) is at least 0.08 percent. Police can determine BAC by testing samples of breath, blood, or urine. Breath testing is most common, followed by blood. Each type of testing requires proof that police followed specific procedures. The evidence must meet standards set by the New Jersey Rules of Evidence (NJRE), state law, and court decisions.

Authentication of Documents

In a courtroom, BAC evidence generally takes the form of written reports. In the case of breath testing, this is usually a series of reports generated by the Alcotest device. BAC results obtained from blood samples involve reports from the laboratory that performed the test. NJRE 901 requires authentication of all documents offered as evidence, meaning evidence that the document is, in fact, what the party offering it claims it is. This can be accomplished by having the person who created the document authenticate it in sworn testimony. Some documents are “self-authenticating,” as described by NJRE 902.

Continue reading

by

New Jersey’s driving while intoxicated (DWI) statute allows the state to prove that a defendant was impaired by alcohol with the results of blood alcohol content (BAC) testing. A BAC of 0.08 percent or higher creates a legal presumption of impairment. Police can determine BAC by testing a sample of breath, blood, or urine. Breath testing is considered to be the least intrusive. Blood and urine tests must follow the rules established by the Fourth Amendment for searches. A defendant can challenge the admissibility of BAC evidence by establishing a violation of their Fourth Amendment rights. A 2013 U.S. Supreme Court decision specifically addressed warrantless blood draws in DWI cases. The New Jersey Appellate Division cited that decision earlier this year in State v. Smijean, reversing a DWI conviction that involved BAC evidence from a warrantless blood draw.

Breath testing for BAC requires a person to blow into a tube attached to a testing device commonly known as a breathalyzer. Most New Jersey police departments use a device known as an Alcotest. Submission of a breath sample is mandatory for anyone who drives on a public road in New Jersey, and refusal to submit a breath sample upon request by law enforcement is a separate motor vehicle offense.

Since breath testing only requires blowing into a tube, it is not considered a “search” under the Fourth Amendment. Blood testing, however, is considered intrusive enough to fall under the Fourth Amendment’s prohibition on warrantless searches. Drawing a person’s blood therefore requires that person’s consent or a warrant issued by a judge. In a general sense, police may be able to conduct a search without a warrant if they can establish that “exigent circumstances” made it impractical to obtain a warrant first, usually because of the risk of loss or destruction of evidence. How this exception applies in DWI cases has been a matter of dispute.

Continue reading

by

The legal standards in New Jersey for proving impairment by alcohol in cases of alleged driving while intoxicated (DWI) are fairly well established. Prosecutors can offer evidence of a defendant’s alleged blood alcohol content (BAC), or they can introduce eyewitness and expert testimony. The DWI statute does not only apply to alcohol, however. It also makes it an offense to drive while “under the influence of…[a] narcotic, hallucinogenic or habit-producing drug.” New Jersey has no equivalent to the BAC limit of 0.08 percent for drugs. A handful of states have established “legal limits” for certain drugs, but no consistent standards exist. Furthermore, breath testing cannot establish the amount of any particular drug in a person’s system, meaning that the state must rely on blood and urine testing. As legal marijuana becomes more prevalent in various parts of the country, these inconsistencies are likely to become clearer.

Under New Jersey law, a driver commits a DWI offense if they operate a vehicle with a BAC of at least 0.08 percent. This is sometimes known as DWI per se, since the state can meet its burden of proof based solely on BAC evidence and evidence that the defendant actually was driving or imminently intended to drive. Prosecutors can also establish guilt without BAC evidence—or occasionally with test results showing a BAC of less than 0.08 percent—through testimony and other evidence. This often includes testimony from police officers who observed a defendant’s demeanor and appearance, particularly if the defendant was driving erratically, had slurred speech, or otherwise displayed outward signs of intoxication by alcohol.

The DWI statute does not mention any specific drug other than alcohol, but courts have interpreted it to mean both illegal drugs and legal drugs that can affect a person’s ability to drive or operate machinery. They have held that eyewitness and expert testimony is sufficient to prove impairment by drugs. In 1975, the New Jersey Supreme Court held in State v. Tamburro that the state must offer evidence that a defendant’s “conduct, physical and mental condition and the symptoms displayed” are consistent with the effects of a narcotic. If the state meets this burden, the court held, it does not have to identify any specific narcotic. The court held in 2006’s State v. Bealor that, unlike in cases involving alcohol intoxication, lay testimony alone is not sufficient to establish impairment by marijuana or other drugs. Police officers with proper training, according to the court, may offer expert testimony.

Continue reading

by

New Jersey law allows prosecutors to offer evidence of driving while intoxicated (DWI) in two ways. One way relies on evidence like testimony by police officers about outward signs of intoxication, including appearance and behavior. The second method involves evidence that a defendant’s blood alcohol content (BAC) was above a certain level. This is often known as “per se” DWI because the BAC evidence creates a presumption that the defendant was impaired by alcohol. A DWI defense strategy should take both methods of proving DWI into consideration. Defending against a per se DWI charge in New Jersey often involves challenging police equipment more than police witnesses. The Appellate Division recently considered an appeal of a per se DWI conviction in State v. Page.

The DWI statute defines the offense as driving either “while under the the influence” of alcohol or drugs or with a BAC of at least 0.08 percent. The latter definition constitutes per se DWI. It does not necessarily require any evidence other than the defendant’s actual or imminent operation of a motor vehicle and the defendant’s BAC at or near that time. It is possible to obtain an acquittal or dismissal in a DWI case even with evidence of a BAC over 0.08 percent. It is also possible, however, for the state to obtain a conviction without BAC evidence or with a BAC of less than 0.08 percent.

New Jersey courts have established a variety of procedures and protocols that police must follow in an effort to ensure the accuracy of BAC test results. Police in this state commonly use a device known as the Alcotest to measure BAC. The defendant must provide a breath sample by blowing into a tube. The device then measures the alcohol content of the sample. The Alcotest requires regular maintenance and careful calibration, and it can produce inaccurate results without either of these. A 2008 decision by the New Jersey Supreme Court, State v. Chun, establishes maintenance and record-keeping protocols that police must follow for Alcotest results to be admissible in court. It also requires police to observe a DWI suspect for 20 minutes before administering the test.

Continue reading

by

Under New Jersey’s driving while intoxicated (DWI) statute, a defendant is presumed to be legally impaired by alcohol if their blood alcohol content (BAC) is 0.08 percent or higher. Police in New Jersey commonly use a device known as the Alcotest to collect breath samples, which the device analyzes to measure BAC. Police may also obtain blood or urine samples to test, but state law only requires drivers to submit breath samples in DWI investigations. Obtaining a sample of blood usually requires a warrant or the person’s consent. Determining whether a defendant gave proper consent to a warrantless blood draw is a key question courts must consider. The New Jersey Appellate Division ruled on this issue earlier this year in State v. Milkosky.

The Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before searching a person or their property. Drawing blood for use in a police investigation counts as a “search.” Courts have identified multiple exceptions to the Fourth Amendment’s warrant requirement. The “exigent circumstances” exception applies when police and prosecutors can demonstrate that taking the time to get a warrant from a judge would result in greater harm than the warrantless search, such as the destruction of evidence, the escape of a suspect, or harm to an officer or others.

Police have, at times, claimed exigent circumstances to justify collecting blood samples from a DWI suspect without a warrant or the suspect’s consent. Alcohol breaks down in the human body due to the process of metabolism. In 2013, the U.S. Supreme Court rejected the claim that the metabolism of alcohol in the body, by itself, satisfies the exigent circumstances exception. The decision, Missouri v. McNeely, established that a warrant or the suspect’s consent is required for most blood draws.

Continue reading

by

Chemical testing for alcohol or drugs is a key component of most prosecutions for driving while intoxicated (DWI) in New Jersey. Breath testing is mandatory under state law, but the Alcotest and similar devices can only test for the presence of alcohol. If police suspect driving under the influence of drugs, New Jersey law provides no immediate means to obtain evidence. Drawing blood without a person’s consent requires a warrant in most circumstances. The New Jersey Appellate Division took up these issues in an appeal that challenged the admissibility of blood test results. Its ruling in State v. Nasta deals specifically with criminal charges, rather than DWI, but it is likely to affect New Jersey DWI cases in the future.

Since it involves an invasive procedure, courts have held that drawing blood as part of an investigation for DWI or another offense is a “search” within the meaning of the Fourth Amendment to the U.S. Constitution. This means that police must obtain a warrant from a judge by demonstrating that they have probable cause to believe that the search will reveal evidence of wrongdoing.

Police are not required to obtain a warrant in certain situations identified by courts as exceptions to the Fourth Amendment. One exception involves “exigent circumstances,” in which taking the time to obtain a warrant would risk greater harm than a warrantless search. The impending destruction or loss of evidence could constitute an exigent circumstance. The U.S. Supreme Court, however, ruled in Missouri v. McNeely that the natural breakdown of alcohol by the human body is not “exigent” enough to allow a warrantless blood draw. The court has not said that a warrantless blood draw is never justified by exigent circumstances, but it has not identified what those circumstances might be.

Continue reading

by

Evidence of a driver’s blood alcohol content (BAC) is a critical tool for prosecutors in driving while intoxicated (DWI) cases. Under the New Jersey DWI statute, a driver with a BAC of at least 0.08 percent is presumed to be impaired. BAC evidence can come from tests on a sample of a driver’s breath or blood. Because of the importance of BAC evidence in DWI cases, New Jersey makes it a separate traffic offense to refuse to submit a breath sample, punishable with a fine and license suspension. Some states make refusal a criminal offense, meaning that it could result in jail time, and require submission to both breath and blood testing. The U.S. Supreme Court considered a Fourth Amendment challenge to criminal refusal statutes last year. Although New Jersey’s refusal statute does not impose criminal penalties or require blood testing, the court’s ruling in Birchfield v. North Dakota is important for DWI defendants all over the country.

Anyone who drives on public roads in New Jersey has, according to state law, given their implied consent to breath testing in a DWI investigation. This allows the state to charge anyone who refuses to submit a breath sample with a traffic offense. New Jersey law does not require drivers to submit to blood testing, however, unless police obtain a warrant. The defendants in Birchfield challenged statutes in Minnesota and North Dakota that impose criminal penalties for refusal. The North Dakota law included both breath and blood samples.

The Fourth Amendment generally prohibits “searches and seizures” without a warrant supported by probable cause to believe that a search will yield evidence or contraband. Numerous courts have held that breath and blood testing are “searches” within the meaning of the Fourth Amendment. Courts have also recognized exceptions to the warrant requirement, however. The “search incident to arrest” exception, for example, allows police to search a person during an arrest. Police may also claim that “exigent circumstances,” such as the imminent destruction of evidence, made waiting to obtain a warrant impractical.

Continue reading
Contact Information

1415 Marlton Pike East #400
Cherry Hill, NJ 08034

TOLL FREE: (877) 593-1717

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, Levow DWI Law, P.C.
JUSTIA Law Firm Blog Design