Defense lawyers say they expect to file more suppression motions as a result of a recent, favorable U.S. Supreme Court ruling on drunken driving.
The court, in Missouri v. McNeely, No. 11-1425, held on April 17 that as a general rule, police must obtain a search warrant or consent in order to extract blood from a driver to test for alcohol.
Previously, the fact that the passage of time would cause a drop in blood-alcohol levels was deemed a sufficient exigency to justify an exception to the Fourth Amendment warrant requirement for searches.
Under McNeely, however, the drop in levels may support an exigency finding in a particular case but does not do so categorically.
The issue must be decided case by case, based on the totality of the circumstances, including the evanescent nature of blood-alcohol levels and the resultant loss of evidence as time passes, the court said.
New Jersey courts have allowed police to require blood testing so long as it is not performed forcibly or against physical resistance.
Blood-alcohol levels are typically based on Alcotest breath samples, with police resorting to extraction of blood where the Alcotest cannot be used — for example, when the driver has been injured, has bad asthma or for some other reason cannot provide a sample.
DWI defense lawyers are grappling with questions raised by McNeely, including whether it will be applied retroactively, which the court did not address.
Jeffrey Gold of Cherry Hill, a past president of the State Bar Association’s Municipal Court Practice Committee, says nothing in the case indicates it will not be retroactive.
It is not a new rule, just an interpretation of the warrant requirement, and thus, should be applied retroactively, in his view.
Gold estimates that 5 percent of his DWI cases involve blood tests, and he will move to suppress based on McNeely in all of them.
Hammonton solo Robert Pinizzotto says at any given time, he has one to five blood-draw cases.
He wonders whether the courts will allow only pipeline retroactivity, limited to pending charges, or complete retroactivity, which would allow DWI conviction challenges.
Another issue raised by McNeely is the warning police will likely have to give in seeking consent to a blood test, similar to when they seek consent to search a vehicle.
Pinizzotto also sees a potential impact on urine tests of drivers suspected of drug use, usually done without a warrant, by consent. If those drivers must also be warned, consent might be harder to come by, he thinks.
Defense lawyer Peter Lederman of Lomurro Davison Eastman & Munoz in Freehold points to additional aspects of McNeely he likes: the credence given to National Highway Traffic Safety Administration standards regarding sobriety, which New Jersey judges do not share, and language recognizing that the interest in preventing DWI does not trump the Fourth Amendment.
Jon-Henry Barr, head of the municipal prosecutors’ association, calls the reaction to the ruling "much ado about nothing."
"I am confident that the New Jersey Attorney General’s Office will issue some type of guidelines now to assure that consent is obtained in a proper way before blood is drawn," says Barr, who heads a firm in Clark.
"In the event a suspected drunk driver does not consent, there will be an appropriate procedure to quickly and probably telephonically obtain a warrant," he adds.
Within 24 hours of the McNeely holding, he received an email about the case from the Union County Prosecutor’s Office — Barr is a prosecutor in two Union County municipalities, Clark and Kenilworth — stating that police should be advised that the need for a blood-test warrant will be evaluated on a totality-of-the-circumstances standard.
Barr, who says roughly 5 percent to 10 percent of DWIs he prosecutes involve blood tests, acknowledges that police have a problem due to McNeely and will need a consent form to draw blood with appropriate warning language and a procedure for obtaining a warrant if consent is not given.
In his experience, police are reluctant to obtain warrants because of the inconvenience. He says the process can be made easier by allowing telephonic warrants. Superior Court judges can already issue them and McNeely has increased the pressure to allow municipal courts to do so as well, he says.
The Supreme Court Municipal Court Practice Committee report released on Feb. 1 mentioned the possibility but held it for future consideration.
The committee said it did not want to contradict the report of the Supreme Court Special Committee on Telephonic and Electronic Search Warrants, which recommended against municipal judges issuing telephonic warrants.
But it also noted that the warrant committee report said if warrant requests increased to the point where Superior Court judges could not handle the volume, certain municipal judges might need to be enlisted.
More than 35,000 driving while intoxicated (DWI) cases were resolved in New Jersey from July 2011 through June 2012, the most recent fiscal year for which statistics are available.
The Attorney General’s Office did not return a call.