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Blood Test After DWI No Longer Per Se Legal

This past week, on April 17, 2013, the United States Supreme Court issued a highly significant ruling concerning drunk driving investigations, addressing whether a search warrant is needed before police may conduct a non-consensual blood draw from a DWI suspect. In Missouri v. McNeely, the Court rejected the notion that a per se exception to the warrant requirement exists in this context by virtue of the natural dissipation of alcohol in the bloodstream. It instead ruled that a search warrant or consent is required, unless the State can establish the exigency based on the totality of circumstances.

This ruling is particularly significant in New Jersey, since the governing case law from our courts had interpreted the earlier U.S. Supreme Court decision in Schmerber v. California, as creating a per se rule relating to the exigencies of collecting blood evidence in a DWI investigation. Although a majority of DWI convictions are based upon a breathalyzer result, a large volume of cases, particularly those involving accidents, rely only on blood test results. In such cases, the person is either physically incapable of performing a breathalyzer test or there is insufficient time to transport them back to the police station for a test after they are treated at a hospital. As with a breathalyzer test result, the admission of the blood test result is crucial to the State’s case.