The Fifth Amendment of the U.S. Constitution , as well as the N.J. Constitution, protects us from “unreasonable searches and seizures". In 2013, the U.S. Supreme Court, in Missouri v. McNeely, held that absent exigent (emergency) circumstances, or consent, an officer had to obtain a warrant before he could have blood drawn from a DUI suspect and that the natural metabolization of alcohol in a defendant's blood was alone insufficient to justify a warrantless blood draw .
Recently, however, on March 27, 2018, the New Jersey Supreme Court, in State v. Zalcberg, seemed to lower the standard for what constitutes emergent circumstances, when it ruled a police force that was not trained in how to obtain warrants by phone, an unconscious defendant, the evacuation of injured parties by helicopter, the need to reopen the highway after the crash, and a limited number of officers working the crash scene, constituted exigent circumstances and upheld the warrantless blood draw.
Technically, the McNeely decision, being from the U.S. Supreme Court, is superior to the Zalcberg decision; however, Zalcberg may not actually be contradicting McNeely and may be limited to its facts, in that it may be argued that the Zalcberg court seemed to only hold that those particular facts created exigent circumstances, without really affecting what constitutes exigent circumstances in other cases.
In any event, since the Zalcberg decision is from the N.J. Supreme Court, it’s expected that officers will attempt to bypass the warrant requirement as much as possible, which will require defense attorneys to challenge any warrantless blood draw.
In N.J. you’re required to submit to the Alcotest (breath test); however, there is no requirement that you consent to a blood draw, and its recommended that you do not consent to one. Let your attorney fight that issue in court.
DUI cases are complicated, and a conviction results in serious penalties. You should have an experienced attorney by your side throughout the process. I have over 25 years experience successfully representing people charged with DUI. If you, a family member, or friend is charged with DUI, call me for a free comprehensive consultation. I’ll explain the charges, and how I can help you.
All the Best!
Randy C. Redden