Matthew Reisig

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 In New Jersey, there is no current procedure to obtain such search warrants before the blood sample is withdrawn.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.

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 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.

There is no difference in New Jersey between DWI and DUI. Our DWI statute is entitled Driving while intoxicated.

The first sentence of the statute makes it illegal to operate a motor vehicle ‘while under the influence’. Therefore, both terms are used interchangeably in New Jersey.

If you have been arrested anywhere in New Jersey for DWI and need assistance, and need the very best, give Reisig & Associates a call at 732-625-9660.

The law on whether an out of state drunk driving adjudication effects a subsequent New Jersey DWI conviction is set forth in the statute at N.J.S.A. 39:4-50(a)(3): “A conviction of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966,c.73(C.39:5D-1 et seq.), shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.”

The practical effect of an out of state DWI conviction(s) is whether the municipal prosecutor has knowledge of this information. For instance, the DWI summons may note that individual charged has a driver’s license from another state. The diligent municipal prosecutor may initiate communication with the DMV of this other state to obtain the individual’s driving record. If this due diligence on the part of the municipal prosecutor reveals a prior out of state DWI conviction, the burden shifts to the Defendant to then demonstrate, if he can, that the prior out of state conviction was predicated upon something other than at least a .08% BAC.

There are many layers to this analysis. The mere fact that a defendant may reveal on a mobile video recorder to a police officer that he has an out of state DWI conviction is not sufficient proof for the State to prove that there is such an out of state conviction. Rather, this could merely serve as the basis for the municipal prosecutor to further investigate whether he can prove the fact of the out of state conviction. Necessarily, this would require cooperation between the out of state DMV and the municipal prosecutor who is requesting such information. That is easier said than done.

A defense attorney should always inquire of his client whether there are prior DWI or Refusal convictions. If this privileged attorney-client information is affirmatively answered concerning a prior New Jersey DWI or Refusal, the attorney should always endeavor to order the client’s Motor Vehicle Commission driver’s abstract. If the same inquiry is made which reveals an out of state DWI or Refusal conviction, the defense attorney should ask the client to obtain his driving record from the other state. However, the defense attorney has no affirmative obligation to provide such information to the municipal prosecutor.

However, the defense attorney can never misrepresent to a municipal court judge whether there is an out of state conviction. This point must be emphasized. To reiterate, the defense attorney can never misstate or mislead the municipal court concerning the fact of a prior out of state conviction on his client’s behalf. These issues can become very complex as they relate to the client’s ultimate sentence and ethical considerations on the part of the defense attorney.

Regarding the specific question of the 2007 New York DWAI, there is a published New Jersey case concerning such a circumstance. State v. Zeikel, 423 N.J. Super 34 (App. Div. 2011). In this case, a three judge Appellate Division panel held that the New York DWAI did serve as a prior out of state conviction to enhance the defendant’s current New Jersey case. While this case has not received a lot of notice or comment in New Jersey DWI circles, it is a published case and is the law in our state.

The bottom line is that an individual with a current DWI, with a prior New York DWAI, should make this fact known to his New Jersey DWI attorney.

If you have been arrested for a DWI in NJ, and have been convicted in another state, give Attorney Matthew Reisig a call at 732-625-9660.