Do The Police in NJ Have The Right To Do That & Does the recent U.S. Supreme Court decision Missouri v. McNeely apply in my case?
This question is confusing in that an individual taken to a hospital pursuant to a DWI arrest is most often in the context of a motor vehicle accident. In those circumstances, the theory of intoxication is almost always alcohol.
In those situations, Missouri v. McNeely has direct consequence since the blood sample obtained from the individual charged with DWI will not be admissible absent a search warrant obtained by the law enforcement officer prior to the blood sample being provided.
In New Jersey, there is no current procedure to obtain such search warrants before the blood sample is withdrawn. This has created a major problem for law enforcement in trying to prosecute such individuals for a blood withdrawal DWI.
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However, this question presents a different scenario where the theory of intoxication is drugs rather than alcohol. As stated, these individuals would most often be subjected to a urine sample at the request of law enforcement at a given police department or State Police barracks.
It is my opinion as a leading DWI defense attorney that such urine samples would also be subject to a search warrant requirement pursuant to Missouri v. McNeely.
In answering the literal question presented, which concerns a blood sample taken at a hospital to determine the presence of a controlled dangerous substance, this unusual circumstance would also require a search warrant pursuant to Missouri v. McNeely.
The bottom line in all of the foregoing fact patters is that a search warrant would be required in order for the blood sample or urine sample to be admissible against the individual charged with DWI.
It should be noted that the drug intoxication DWI (DUID) is the hardest to prove in New Jersey. By definition, it is the easiest type of DWI case to defend. Whenever the theory of DWI is sought to be proved by a blood or urine sample, law enforcement is now required to obtain a search warrant before the bodily specimen is obtained.
To reiterate the prior point of emphasis, New Jersey has not yet developed procedures for obtaining search warrants before the request for the blood sample is obtained.
If you have been arrested for DUID in Monmouth County, NJ, Ocean County, NJ & Middlesex County or anywhere else in the state of NJ, call Reisig Criminal Defense & DWI Law at (732) 625-9660.
