Prosecution and Defense

NJ DWI Blood Testing FAQ’s

1. What are the reasons for taking a blood sample?

The New Jersey police rely on the Alcotest to provide the evidence of a suspected drunk driver’s blood alcohol concentration in the vast majority of the case. However, there will be some very serious cases wherein the police will seek to obtain the vital evidence taking a sample of the defendant’s blood. In the vast majority of the cases, the extraction of a blood sample will come from the body of the defendant in a drunk driving case after a serious accident.

When the police response to the scene of a motor vehicle accident, one of their primary jobs is to provide immediate care and to seek emergency medical treatment for those who have been injured. During the course of their investigation, the police may develop evidence that leads them to reasonably believe that one or more of the operators of the motor vehicle in that accident may have been under the influence of drugs or alcohol at the time of the accident. If the level of belief rises to probable cause, the police may arrest the drive before a DWI. However, due to the injuries sustained in the accident, the defendant may require immediate medical treatment at a hospital. This fact prevents the police from having the defendant take a breath test within a reasonable period of time after operating the vehicle. In fact, sometimes injuries that the defendant received to the head or face may physically prevent him or her from blowing into a breathalyzer.

In this type of scenario, the police may request that the attending medical staff to extract samples of the defendant’s blood for the purpose of determining the blood alcohol concentration. In most cases, the police will request two blood samples which will be stored in special containers know as “gray top vials.” The vial contains certain chemicals, which are intended to mix with the blood sample and preserve it pending testing. The police will take possession of the two samples, log them into evidence and prepare the necessary paperwork.

In any DWI case, the forensic lab reports of the blood tests may be the only evidence available to prove the intoxication element of the offense. Typically, the police will not be able to have the defendant perform any psycho-physical tests due to the defendant’s injuries and the need for emergency medical treatment. Thus, unless the police have other direct evidence of intoxication, such as witness testimony or videotape, the entire case will succeed or fail based upon the availability and admissibility in evidence of the blood tests results.

2. Can the police force a driver who operates a motor vehicle on the road to provide a blood test if he is stopped for a DWI?

New Jersey law requires a driver who operates a motor vehicle on the road to voluntarily provide breath samples for the purpose of determining his blood alcohol concentration. These breath tests are a vital component of a DWI prosecution. The results may constitute sufficient evidence to prove a per se violation of a DWI. The refusal by the defendant to voluntarily provide a valid breath sample may frustrate a prosecution for a DWI. Moreover, a breath sample may not be taken by force or against het will of the defendant.

However, although a defendant may elect to refuse a breath test, a defendant does not have a right to refuse to provide a blood sample. See, Schmerber v California, 383 U. S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Thus, if the police have probable cause to believe that the defendant operated a motor vehicle and he is guilty of a DWI, they may transport him to the hospital and have a blood sample taken by medical personnel, against ht will of the defendant if necessary. See, State v. Ravotto, 169 N.J. 227 (2001). In this way, the police will have available for the prosecution the evidence of the defendant’s blood alcohol concentration within a reasonable period of time after the operation of a motor vehicle.

3. Under what other type of scenarios can the police force a driver to give a blood sample?

In some cases, a defendant will have an outrageously high BAC level. In these types of cases, the police will often take the defendant to the hospital and compel him to give a blood sample. Many police departments in New Jersey have standard operating procedures which mandate blood testing at a hospital when the results of a defendant’s breath tests are in excess of a given level. For example, a blood alcohol concentration in excess of 0.28% may prompt the police to transport the defendant to a hospital. Levels of intoxication this high, when left uncreated, may result in serious complications or death for the defendant. While at the hospital, the police will normally seek their own independent blood samples for testing.

4. What is the major condition for the admissibility of the results of the analysis of a blood sample in a DWI case?

The major condition of admissibility for the results of the analysis of a blood sample in a DWI case is that the sample must be taken form the body of the defendant in a medically acceptable manner. See, Schmerber v. California, 384 U.S. 758, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Under N.J.S.A. 2A:62A-11, a person who draws a blood sample at the request of the police in a DWI case does not have to appear at court to personally testify at trial. Instead, that person may submit a certificate under oath, indicating that the sample was properly taken.

In the case of State v. Renshaw, 2007 WL 419621, N.J. Super. Ct.  (App. Div. 2007), the court ruled that the evidence contained in the certificate prepared under both by a phlebotomist was “testimonial” within the meaning of Crawford v. Washington, 541 U. S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Thus, the certificate would be inadmissible at trial except under two circumstances. First, there may be a voluntary waiver by the defendant as to the certificate’s inadmissibility. In the alternative, if the person who drew the blood is unavailable at rial and was subject to a meaningful cross-examination prior to trial, then the certificate would be admissible.

5. Can the police use force upon a defendant/driver to obtain a blood sample in a DWI case?

During the course of a DWI investigation, the police are often required to transport a suspect to the hospital for the purpose of extracting a blood sample. The purpose of same is to determine the level of alcohol of the suspect blood within a reasonable perish of time after the operation of a motor vehicle. Most DWI suspects will cooperate with the process, and voluntarily consent to peroxiding a blood sample. However, some DWI suspects refuse to cooperate. Some suspects resist the efforts of the medical personnel to draw blood. No doubt, a high level of intoxication, coupled with the stress of being arrested, influences many of the suspects. Although DWI driving suspects are required to provide breath samples, there is no statute that requires the giving of blood samples, and no punishment for reassign to do so.

On the other hand, there is no right under New Jersey law to refuse to provide a blood sample when asked. Accordingly, if a DWI suspect declines to voluntarily cooperate in the securing bloods samples, the police may use a reasonable amount of force in restraining the suspect so that medical personnel may take the sample. Moreover, New Jersey law is clear that the use of a reasonable level of force used in taking the blood sample does not violate the drunk driving suspect’s federal or state constitutional rights to be free from unreasonable searches.

6. What is the most important case in regards to the forceful extraction of blood?

The most important case is Schmerber v. Calinfornia, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). In the Schmerber case, the court held that the warrantless extraction of blood from the body of the defendant against his will is reasoned under the Fourth Amendment if certain critical factors are met. First, there must be exigent circumstances making it too difficult to obtain a warrant. Secondly, the police officers must act in a reasonable manner, given the circumstances that confront him. Finally, the blood sample must be taken in a medically acceptable manner. It is important to note that the extraction of blood from an unwilling DWI suspect taken through police initialized by violence, or inappropriate force would not be reasonable. Id.

7. What are the important New Jersey cases on the issue of the use of force in connection with the extraction of blood samples from an uncooperative DWI suspect?

Several New Jersey cases have explored the use of force in the connection of the extraction of blood samples from an uncooperative DWI suspect. In an early case of State v. Woomer, 196 N.J. Super. 583 (App. Div. 1984), the police  use force and hold the defendant’s arm down for the purpose of extracting blood at a hospital after the defendant rescued to consent to the simple being taken. The defendant submitted to the extraction of his blood, based upon the threat of force. His subsequent successful motion to suppers evidence of the blood restyles was revered by the Appellate Division. The court ruled that a defendant who resists a blood sample can be restrained in a medically acceptable way. A defendant who is arrested by the police with probable cause to believe he is intoxicated, has no federal constitutional right to prevent the involuntarily taking of a blood sample. The proposed threat to the defendant to use force to obtain the sample was merely a correct statement of law by the police.

A landmark case is State v. Ravotto, 333 N.J. Super. 247 (App. Div. 2000). Here, the defendant was highly intoxication when he arrived at the hospital after having been involved in a serious accident. The defendant was violent in the emergency room and attempted to assault the medical personnel. In order to draw a blood sample and protect both themselves and the medical state, the police used restrained. Two officers and two nurses held down the defendant’s arms while blood samples were drawn. The Appellate Division ruled that the use of force was reasoned under these circumstances. There were exigent circumstances confronting the police in this case, which justified tweaking of the blood without a search warrant. The court took note of the evanescent nature of blood alcohol evidence and the difficulties in obtaining a warrant in circumstances presented by these types of cases. Moreover, given the conduct of the defendant, the level of force used by the police in obtaining the blood sample was reasonable.

The Ravotto case was ultimately reversed by the Supreme Court. The court acknowledged that prior cases have sustained the use by the police of the threat of the use of force in order to obtain the cooperation of an arrested person in the extraction of blood. See, State v. Ravotto, 169 N.J. 227 (2001).

8. What is the current status of the legal rights of a suspected DWI driver as to forced blood samples?

There is still no right by a suspected DWI driver to refuse to provide a blood sample. New Jersey police who have arrested a defendant based upon probable cause to believe that the defendant has operated a motor vehicle while under the influence may require the extraction of a blood sample from the body off the defendant. If the defendant refuses or resists the taking of the sample, the amount of force the police may use must be objectively reasonable under the totality of the circumstances. There must also exist exigent circumstances justifying the police actions for taking of a blood sample. Finally, the extraction of the blood must be accomplished in a medically acceptable manner.

9. If I refuse to provide a blood sample to the police, how will this hurt my chances to beat a DWI case?

If you refuse to provide the police voluntarily with a blood sample upon their request during a DWI investigation, this will not constitute either a motor vehicle or criminal offense under New Jersey law. However it is equally clear that the refusal to give a blood sample that is bed upon self-serving justification  the defendant may be admitted in evidence and used by the fact-finder at trial to draw an adverse inference against the defendant. In short, the judge may infer that the defendant’s refusal to provide a blood sample to the police will demonstrate a consciousness of guilty. See, State v. Cran, 363 N.J. Super. 442 (App. Div. 2003).

10. Under what conditions are the results from the tasting of a blood sample taken from the body of a defendant in a DWI case?

The admissibility of the results from the testing of a blood sample taken from the body of a defendant in a DWI case is subject to many conditions. The presentation of the proofs related to the condition of the admissibly in a blood case is typically offered to the court during the course of a so-called Rule 105 hearing. Any time the admissible is subject to the proof of the fulfillment of a condition, these proofs are provided to the court during a hearing conducted under N.J.R.E. 104(a). During the hearing, the rules of evidence do not apply, except for a valid claim of privilege on the conclusion of a trial, confusing or extraneous issue under N.J.R.E. 403. The rules are evidence are relaxed during this hearing. The court is free to consider any relate or trustworthy evidence offered to satisfy the conditions of admissibility. Thus, documents that would normally be admitted at the hearing, such as certifications or affidavits, may be considered by the court as supporting proof, provided that the court finds them to be reliable. See, State v. Cardone, 146 N.J. Super. 23 (App. Div. 1976).

11. What is the chain of custody evidence for a blood sample?

One of the most important issues in any blood DWI case is the chain of custody. The prosecutor must offer proof as a condition to admissibly that the blood sample that was tested a proper chain of custody. These proofs will begin with the testimony of the police officer who ordered the taking of the blood sample. The officer should be able to establish that he had probable cause to place the defendant under arrest for DWI, and relate the reason why it was necessary to take a blood sample from the body of the defendant. Usually, the officer will be able to testify that he witnessed an authorized medical professional take the blood samples from the body of the defendant. The officer should also note in his testimony that the saw the person who drew the blood sample swab the defendant’s arm with a betadine solution before the blood sample was taken.

The next portion of the testimony should be devoted to an explanation as to what happened to the blood sample immediately after it was withdrawn from the body of the defendant. The police officers should be able to be prepared to testify as to how he personally took possession of the sample, and transported it to the police station where it was logged into evidence and placed into appropriate storage. Thereafter, the officer who prepared the report should be able to present documentary proof or testimony of what next happened next to the sample. In the normal course, the sample will be taken from the evidence storage and transported to a forensic lab for teasing. Again, affidavits, receipts and certifications can be submitted to the court because of the relaxation of the rules of evidence during the Rule 104 hearing.

Ultimately, the court must be satisfied that the blood sample that was delivered to the forensic lab, is the same sample that was taken from the body of the defendant. Additionally, the officer should be prepared to present documentary proof or testimony of what next happened to the sample. In the normal course, the sample will be taken from evidence storage and transported to a forensic lab for testing. Against, affidavits, receipts and certifications be submitted to the court because of the relaxation of the evidence ruled during the Rule 104 hearing.

12. Are the blood tests results in a DWI case admissible at trial?

Under the procedures in a DWI case, the defendant must object to the prosecutor to compel him to produce the lab tech at the DWI trial. The prosecutor must produce the lab tech because the lab certs are considered hearsay based on the arguments on the confrontation clause considerations. If the defendant fails to place the prosecutor on notice to produce the lab tech, then this will constitute a waiver of the defendant’s right to object. In short, the results of blood tests performed by lab techs are hearsay documents.

An important case is State v. Berezansky, 386 N.J. Super. 84 (2006).  The legal issues in the Berezansky case involved a challenge by the defendant to the admissibility State Police laboratory results of a blood test in a drunk driving case. The State argued, in conformity with existing case law, that such laboratory reports are normally admissible in a drunk driving case as either a public record or a business record.

The Appellate Division rejected this position and ruled that the admissibility of laboratory blood tests from the State Police in a drunk driving case should generally conform to the statutory procedures required by the Legislature for laboratory reports in drug cases under N.J.S.A. 2C:35-19. Under this statute and the case law that has interpreted it, (State v. Simbara, 175 N.J. 37 (2002) and State v. Miller, 170 N.J. 417 (2002)) a defendant is entitled to complete proof as to the reliability of the testing procedures used as part of discovery and maintains the right to confront the person who prepared the report in court simply by objecting to the report’s admissibility pre-trial. This decision changed that way that blood based DWI cases are prosecuted. At a minimum, this case has caused State Police forensic laboratory personnel being required frequently to testify in DWI blood cases around the state.