New Jersey lawmakers are pushing legislation that would deem licensed drivers to have given implied consent to blood and urine testing for drunkenness.
The proposed bills would expand the implied consent statute, N.J.S.A 39:4-50.2, which makes refusal to submit to a breath test an offense.
One of the bills would allow police to use "reasonable force" to obtain a blood sample "in a medically accepted manner" if a suspected drunken driver has caused serious injury or death.
The legislation comes in response to a U.S. Supreme Court April 17 ruling, in Missouri v. McNeely, that involuntary taking of blood samples amounts to a search.
"We're closing a loophole so that the police will not have to get a warrant before taking a blood or urine sample," says one of the sponsors, Sen. Shirley Turner, D-Mercer.
"McNeely is an opening for the defense bar to challenge blood-draw cases," says Assembly sponsor Reid Gusciora, D-Mercer, municipal prosecutor in Princeton, Lawrence and Hopewell Borough, who says contests are imminent in two of his pending cases.
"This ruling could create a headache for municipal prosecutors. It could lead to a situation in which police officers will not be able to take blood or urine samples without a warrant," he says.
Having the tests taken is time-sensitive, he notes, adding, "Good luck waking up a judge at 2 or 3 in the morning who will be willing to hear the case by phone."
Jon-Henry Barr, president of the New Jersey State Municipal Prosecutors Association, says that in the four months since McNeely was handed down, there has been no guidance from the state on how to proceed when police want to take blood or urine samples.
"I've been telling the police to get consent or a warrant first," says Barr, who practices in Clark.
Jeffrey Gold, a drunken-driving defense lawyer in Cherry Hill, says the "reasonable force" bill, S-2933, sponsored by Sen. Christopher Bateman, R-Somerset, would be a radical change.
"They're going to tie you down and stick a needle into you?" he asks. "The [court] in McNeely said, 'That's abhorrent to us.' How are you going to force someone to urinate?"
He also faults the Turner/Gusciora legislation, S-2939/A-4284, for making no mention of a requirement that a police officer read a statement outlining the consequences of refusing to submit to breath, blood or urine tests.
Gold says the legislation would eviscerate the state Supreme Court's ruling in State v. Marquez, 202 N.J. 485 (2010), which held that reading the statement is an element of the refusal offense. "This is bound to cause trouble," he says.
Michael Drewniak, a spokesman for Gov. Chris Christie, declined to comment on the legislation.
Bateman could not be reached for comment.
A-4284, introduced June 24, is in the Assembly Law and Public Safety Committee. S-2933 and S-2939, introduced July 29, are unassigned.
The Legislature is the middle of its summer recess, and hearings on the bills are not likely to be held until the fall.