Dash Farrow partner Tim Farrow was recently asked by the New Jersey Law Journal to comment on the New Jersey Supreme Court’s recent ruling in the case of State v. Zalcberg, regarding blood draws by police in reference to investigations of Driving While Under the Influence (D.W.I.). Drawing blood is considered a search under the Fourth Amendment and thus generally requires a search warrant prior to execution, unless exigent circumstances are sufficient to justify an exception. This recent ruling broadens the circumstances that qualify for an exception to that requirement.
The NJ Law Journal is New Jersey’s premier publication for legal news and updates. Mr. Farrow was asked to comment based upon his experience and expertise in handling numerous DWI cases like this throughout his career.
“The state court’s ruling appears to shake up the U.S. Supreme Court’s 2013 decision in “Missouri v. McNeely,” which held the natural metabolization of alcohol in a defendant’s blood was insufficient to justify a warrantless draw.
In light of the New Jersey Supreme Court’s Zalcberg decision, some legal observers believe police will be more inclined to draw blood from drunken driving suspects without a warrant.
The court ruled on March 27 in State v. Zalcberg that a suspected drunken driver’s constitutional rights were not violated when police had a sample of her blood drawn without her consent at a hospital. There, the court ruled a series of exigent circumstances, including a police force that was not trained in how to obtain warrants by phone, relaxed the need for a warrant and rendered the drawing of blood from Shayna Zalcberg constitutional.
Other exigent circumstances were the presence of multiple injured parties, 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, the court said.
The court’s ruling in Zalcberg appears to shake up the U.S. Supreme Court’s 2013 decision in Missouri v. McNeely, which held that the natural metabolization of alcohol in a defendant’s blood was alone insufficient to justify a warrantless blood draw.
“My fear is it might encourage police officers not to think about warrants entirely,” said Jon-Henry Barr, a past president of the state municipal prosecutor’s association. “The appropriate message from this ruling is if it’s going to be extremely difficult or impossible to get a warrant, you’ll be OK by not getting one. The court seems to go out of its way to explain that [the Zalcberg case] is a limited factual circumstance.”
“I have very limited experience in seeing police go through the hoops of trying to get a telephone warrant. My view is they should always try to get consent and if they can’t get consent, then get the warrant,” said Barr, who heads a firm in Clark, New Jersey.
Police officers could use more training on the subject of warrantless blood samples, Barr said.
The case concerned a 2011 crash in Freehold Township in which a vehicle driven by Zalcberg, who had two passengers, struck another car. A passenger in Zalcberg’s car, Feliciano Colon, was killed. Police had probable cause to suspect Zalcberg was drunk when paramedics reported she smelled of alcohol, and a small liquor bottle was found on her car’s console, according to the court’s decision.
“We conclude that the officers’ lack of awareness of any formal procedure through which they could obtain a telephonic warrant, coupled with their pre-McNeely belief that they did not need such a warrant, suggests there was no reasonable availability of a warrant,” Justice Faustino Fernandez-Vina wrote for the majority.
One aspect of the Zalcberg ruling that is troubling is its recognition of the arresting officers’ professed ignorance of the telephone warrant procedure, said Timothy Farrow of Dash Farrow in Moorestown, a criminal defense lawyer who frequently handles drunken driving cases. Farrow agrees with the court’s two dissenters in the Zalcberg case, Justices Barry Albin and Walter Timpone, that an officer’s ignorance of the law does not justify violation of an individual’s constitutional rights.
What’s more, said Farrow, the ruling’s grant of an exemption for exigent circumstances “could be interpreted by officers or departments to mean that as long as you document that and it’s not bad faith, it’s OK if you don’t get a warrant. It’s definitely going to loosen it up a little bit,” he said.
Farrow said the system for obtaining telephone warrants has improved since the time of the 2011 crash that was at the center of the Zalcberg case. A telephone warrant can be obtained in about a half-hour, he said.
“It’s still not what I would call easy and what the officers and prosecutors and judges would call an easy process. At the same time, it’s much more efficient than it used to be,” Farrow said.”
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