Forced Blood Draw on DWI Suspect not Legal, Search Warrant Required

In MISSOURI v. MCNEELY, the U.S. Supreme Court held that police can not force a DWI suspect to give blood unless they first obtain a search warrant . This case will have a far-reaching consequences on DWI litigation nationwide, including in New Jersey. Prior to this decision, it had been common practice of the police to make DWI suspects give a blood sample. By force, I do not mean actually physically forcing an individual to comply. I am referring to a situation when a person under arrest for suspected DWI does not consent to a blood draw and then the police instruct the hospital, nurse or technician to take the sample anyway.

Before this decision, police would rely on the inherent exigency of a dissipating blood alcohol content and argue the exigent circumstances exception to the search warrant requirement. However, the Court reasoned that a person certainly has a heightened expectation of privacy when it comes to their body, especially with respect to  intrusions within.

However, this is not to say that there would never be a situation when the 4th amendment warrant requirement could fall prey to an exigent circumstances exception. The Court simply stated that exigency is not categorical in this instance. Exigency is a fact sensitive, totality of the circumstances analysis. For courts to apply this analysis would put no more burden on them. They already engage in this type of analysis for most warrant exception cases.

This case does not affect the implied consent law in New Jersey that requires the providing of breath samples. No search warrant is required for breath. Also, it is being argued that the case is not applied retroactively, meaning that cases decided before this decision which involved involuntary blood draws  would not fall under its protections.

Nonetheless, there may be pending New Jersey DWI trials that involve this exact issue and its time to put the argument to work.

Remember, if the police want to take your blood, you have the absolute right to refuse.  If you have been arrested and charged with a violation of NJSA 39:4-50 that involves a blood draw, we can help regardless of the circumstances. These are not easy cases for the state to prove anyway and this new law makes it a little harder still.


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