Nj Justices Retroactively Apply Scotus Dwi Ruling Michael Booth, New Jersey Law Journal May 4, 2015

The New Jersey Supreme Court has ruled that a 2-year-old U.S. Supreme Court decision that says police generally must obtain a search warrant before they take blood from suspected intoxicated drivers must apply to any case currently in the courts.

In a unanimous ruling on May 4, the court, in what seems to be a reluctant acquiescence, said it had no choice but to apply the U.S. Supreme Court’s ruling in Missouri v. McNeely retroactively to cases currently pending in trial or on appeal in which blood samples were drawn.

In McNeely, the U.S. Supreme Court said natural dissipation of alcohol in the blood of suspected drunken drivers does not justify the drawing of blood samples without first obtaining a warrant.

Justice Jaynee LaVecchia, writing for a unanimous court in State v. Adkins, said the McNeely ruling meant that “dissipation of alcohol from a person’s bloodstream is not the beginning and end of the analysis for exigency,” but merely “one factor.”

LaVecchia said the state Supreme Court believed it had to follow the ruling in McNeely “notwithstanding that our case law, like that of many sister states, had provided de facto, if not de jure, support for law enforcement to believe that alcohol dissipation in and of itself supported a finding of exigency for a warrantless search of bodily fluids in suspected driving-under-the-influence cases.”

The New Jersey high court did, however, rule that the lower courts may give great weight in any probable cause hearing to police officers’ reasonable belief that the blood samples needed to be drawn before a warrant was obtained because of exigent circumstances.

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

Cherry Hill litigator Jeffrey Gold focuses his practice on drunken driving cases and argued on behalf of the amicus New Jersey State Bar Association.

Now, he said, in cases where a blood test is taken instead of a breath test, a warrant is required unless the suspected drunken driver has been involved in an accident.

“Blood dissipation is no longer an exigency,” Gold said.

Gold said that both the defense and the state generally agreed during oral argument that McNeely now applied in blood-draw cases. The issue was whether it would apply to all cases, including ones that already had been adjudicated, or future cases only. Ultimately, the court said its ruling applied to any active case.

“They split the baby,” Gold said.

Richard Klineburger III, the attorney for defendant Timothy Adkins, praised the ruling.

“A blood test is an invasive procedure,” said Klineburger, of Klineburger & Nussey in Haddonfield. “If the police need a warrant to search your purse or your duffle bag, they need a warrant to draw your blood.”

The Attorney General’s Office, which represented the state on appeal, did not immediately respond to a request for comment.

During oral arguments in December, Assistant Attorney General Ronald Susswein said McNeely should not be applied retroactively because police officers were acting under guidelines that had previously been established by the state Supreme Court.

“The police were acting under the rules you set for them,” he said. “The training was spot-on.”

Adkins was arrested in December 2010 after his car struck a utility pole, according to court documents. Adkins failed several field sobriety tests and was taken into custody, according to the Appellate Division’s opinion last year.

Two hours after the arrest, police took Adkins to a hospital and obtained a blood sample without his consent or a warrant, court documents said. The test revealed a blood-alcohol content of .157 percent, nearly twice the legal limit for driving.

A trial judge ruled that the blood sample taken from Adkins was inadmissible because there were no exigent circumstances.

An Appellate Division panel, however, reversed, citing the U.S. Supreme Court’s 1966 ruling in Schmerber v. California. In that case, the court ruled that drawing a blood sample without a warrant was permissible if the police had probable cause to suspect that the driver was under the influence and that “medically reasonable” procedures were followed.

But LaVecchia said the ruling in McNeely represented a new standard.

“Under federal retroactivity law, the decision deserves pipeline retroactive application,” she said. “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, we are bound to follow it as the minimal amount of constitutional protection to be provided.”