Forced Blood Draws
Under New Jersey’s implied consent law, any driver lawfully arrested on suspicion of DWI / DUI must take a chemical test to determine blood alcohol content (BAC). But, ironically, there is no such offense in New Jersey as refusing to take a blood test. Refusal charges only apply to breath testing in New Jersey.
Any driver whose blood was taken by force needs an experienced DWI / DUI attorney to protect his or her legal rights. An experienced New Jersey drunk driving defense attorney at Levow DWI Law will thoroughly examine the circumstances surrounding a forced blood draw to determine whether the results can be suppressed or dismissed from evidence.
Forced blood draws were first sanctioned in 1966 by the U.S. Supreme Court in the case of Schmerber v. New Jersey. The justices ruled that a warrant isn’t required if the sample is taken in a medically approved manner, following a lawful arrest, and based upon the reasonable belief that the person is under the influence. If this criterion is adhered to, then forced blood draws do not violate the driver’s Fourth Amendment right against unreasonable search and seizure.
In 2005, the Supreme Court went even further to endorse forced blood draws when the justices declined to review a Wisconsin Supreme Court decision that upheld the right of police to take blood by force after the driver had already taken several breath tests. By affirming the Wisconsin ruling, the justices essentially handed police the right to take blood by force just to obtain additional evidence.
Warrants aren’t required for forced blood draws because of the temporary nature of alcohol in the blood, courts have ruled. But civil rights advocates argue that forced blood draws invade drivers’ privacy and violate the right against self-incrimination.
New Jersey courts have, however, taken a protective stand against forced blood draws. In a case called State v. Ravotto, it was determined that police cannot use unreasonable force in obtaining a blood sample from a driver.
An experienced New Jersey DWI defense lawyer will thoroughly examine the circumstances surrounding a forced blood draw to determine whether it was justified. If not, the attorney will make a motion to exclude any improperly obtained evidence. A suppression motion is a request to the court to exclude evidence because it was not gathered in a constitutionally valid way.
A forced blood draw may also be excluded if the protocol laid out by the Supreme Court and the New Jersey courts was not followed. The judge cannot consider any suppressed evidence when weighing the accused motorist’s guilt. Any evidence gained as a result of the unconstitutional evidence must also be excluded.
A New Jersey DWI defense attorney who is well-versed in constitutional challenges to forced blood draws review the circumstances surrounding a forced blood draw and determines whether the evidence may be suppressed. If police improperly took blood by force, or if the proper protocol wasn’t followed, any evidence obtained may be excluded from the trial.
The NJ DWI defense lawyers at Levow DWI Law have extensive training in blood testing issues, having attended numerous national seminars on forensic testing issues. Evan Levow has been a presenter at several national and local seminars on forensic issues and DWI / DUI protocol.
Please contact us to discuss the blood draw in your case, and whether there are issues that can lead to dismissal of the results and the DWI / DUI charge. Call Levow DWI Law at 877-593-1717 for a free consultation.