Supreme Court Changes New Jersey DUI Protocol


New Jersey lawyers might have some new defenses against drunk driving cases.

Courts may see a growing number of issues involving the rules of evidence as a result of a recent ruling by the New Jersey Supreme Court – but there was no choice.

In Missouri v. McNeely (2013), the U.S. Supreme Court rejected the State of Missouri’s argument that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence. This is because BAC evidence is inherently evanescent. Instead, the justices suggested that obtaining a warrant should be the default protocol.

As a result, police officers will find it more difficult to obtain blood draws from drivers suspected of driving under the influence. Some defendants currently charged with DUI may even be able to successfully challenge the results of such tests.

As Justice Sonia Sotomayor further explained in the majority opinion, “Though a person’s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

Under the U.S. Constitution, the Supreme Court establishes the law of the land, and state courts must issue decisions that are consistent with its rulings. In addition, when the U.S. Supreme Court rules on the law regarding the conduct of criminal prosecutions, it must be applied retroactively to all pending cases, state or federal.

Accordingly, the Supreme Court of New Jersey had little choice but to rule that McNeely applies retroactively to DUI cases currently pending in trial or on appeal in which blood samples were drawn.

As Justice Jaynee LaVecchia explained in State v. AdkinsMcNeely represents new law settling an area of criminal practice, thus, under federal retroactivity law, the decision deserves pipeline retroactive application. The United States Supreme Court has pronounced the standard to be applied under the Fourth Amendment to warrantless searches involving blood draws of suspected DWI drivers and, under Supremacy Clause principles, this Court is bound to follow it as the minimal amount of constitutional protection to be provided.

Going forward, the New Jersey Supreme Court instructed that trial courts may assign significant weight in any probable cause hearing to police officers’ reasonable belief that exigent circumstances existed, making it necessary to obtain the blood samples prior to seeking a warrant.

“[P]otential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances,” Justice LaVecchia said.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Supreme Court Changes New Jersey DUI Protocol