Defending the DWI Blood Case

Vol. 4, No. 2

Kenneth Vercammen (@KenVercammen) is an Edison, Middlesex County, New Jersey, trial attorney. He is the author of the ABA GPSolo Division Book Criminal Law Forms, available from ABA Publishing. (Please see below for ordering information.) Mr. Vercammen has published 125 articles in national publications on criminal, traffic, DWI, probate, estate planning, and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association, and Middlesex County Bar Association. Kenneth Vercammen was the New Jersey State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor’s Association. He is the past chair of the New Jersey State Bar Association Municipal Court Section and is the co-chair of the ABA Criminal Law Committee of the Solo, Small Firm and General Practice Division. He serves as the editor of the popular legal websites and Kenneth Vercammen was included in the 2014 “Super Lawyers” list published by Thomson Reuters.


If you are a criminal defense attorney, the US Supreme Court McNeely case will help you defend your clients.

The US Supreme Court now requires warrant before taking of blood in DWI: Missouri v. McNeely, 133 S. Ct. 1552 (2013), decided April 17. I argue this decision also applies to urine cases where consent was not obtained in writing.

The US Supreme Court discussed how Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U. S. 757, in which this court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ “ id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person.

Held: The judgment is affirmed. 358 S. W. 3d 65, affirmed.

Justice Sotomayor delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

(a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U. S. 218, applies here, where the search involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception “applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.’” Kentucky v. King, 563 U. S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U. S. 398. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene.
(b) The State nonetheless seeks a per se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent. 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. See McDonald v. United States, 335 U. S. 451. Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect, Richards v. Wisconsin, 520 U. S. 385. Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U. S. 291, BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is obtained. The State’s rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically.
(c) Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.

Justice Sotomayor, joined by Justice Scalia, Justice Ginsburg, and Justice Kagan, concluded in Part III that other arguments advanced by the State and amici in support of a per se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court’s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U. S. 119–125. They also contend that the privacy interest implicated here is minimal. But motorists’ diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.

Automobiles are areas of privacy protected by the Fourth Amendment of the United States Constitution. State v. Williams, 163 N.J. Super. 352, 356 (App. Div. 1979). New Jersey Courts have held that Article 1, Paragraph 7 of the New Jersey Constitution affords greater protection than the Fourth Amendment. State v. Davis, 104 N.J. 490 (1986), State v. Kirk, 202 N.J. Super. 28, 35 (App. Div. 1985). The burden is on the State to prove an exception to the warrant requirement showing the need for the search. State v. Welsh, 84 N.J. 348, at 352. Understandable, professional curiosity is not sufficient justification for an intrusion on a constitutionally protected automobile. State v. Patino, 83 N.J. 1 (1980).

The United States Supreme Court has declared that random stops for license and registration checks violate the Fourth Amendment prohibition against unreasonable searches. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 674 (1979); State v. Patino, 83 N.J. 1 (1980). If there was no indication that motor vehicle laws were violated or that any other laws were violated, police officers will have violated the constitutional rights of defendant by ordering him to exit the vehicle so the police on the scene could conduct warrantless searches. To help prepare for the Suppression motion, your Clients may wish to take photos of stop/accident location. Clients may also wish to prepare a diagram of the stop/ accident location.

The following is a portion of my discovery demand in DWI blood and urine cases. This and 150 other forms are contained in the ABA Criminal Law Forms book. Details to purchase are at the end of the discovery demand form. Many of the ideas are used in the discovery demand written by John Menzel of New Jersey, which were included in our seminar handbook “Handling Drug, DWI and Serious Municipal Court Cases.” Feel free to revise the below discovery demand to meet the requirements of your state:

My client is charged with DWI, which has Consequences of Magnitude. It has been brought to my attention that the lab conducting testing may not have been properly certified. We also require proof of 2013 certification for the lab.


Items Required by Defense and Expert

  1. All gas chromatograph results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div. 1986).
  2. All results and notes.
  3. The operator's manual for all instruments used to test the substances, pursuant to State v Green 417 NJ Super. 190 (App. Div. 2010) and State v Ford 240 N.J. Super. 44 (App. Div. 1990). Defense requests all operating procedures, instruction manuals, test protocols, maintenance logs of the gas chromatograph or equipment used, performance evaluations, and test result printouts.
  4. Resume and personnel file of scientist
  5. All the 911 and police calls for date of violation.
  6. Copies of the 15 prior DRE reports by any DRE,
  7. All DRE reports since this arrest
  8. All video for police vehicles or other police vehicles involved.
  9. Names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information including a designation by prosecuting attorney [or you] as to which of those persons prosecuting attorney [or you] may call as witnesses; and their dates of birth


DRE and Field Sobriety Testing

  1. Training materials for Drug Recognition Expert/ DRE kept by Police department.
  2. Many departments rely on the NHTSA Manuals dealing Drug Recognition Expert/ DRE. If your department relies on these manuals, please advise in writing the website link to the specific manual relied on by Police department.
  3. Documents, which set forth any formal connection between the Police and the International Association of Chiefs of Police for DRE or Drug Recognition Expert.
  4. Written communications from the International Association of Chiefs of Police to Police department regarding Drug Recognition Expert between 1/1/2010 to present.
  5. Documents, which set forth Standards for an officer in Police department to become a Drug Recognition Expert/ DRE.
  6. Documents which set forth procedures for officers in Police department to achieve certification or recognition as for Drug Recognition Expert/ DRE.
  7. The most recent training manual for Drug Recognition Expert/ DRE by your department.


Regarding Field Sobriety Testing

  1. Training materials for each any “test” usually given to individuals under suspicion of DWI including manuals, lesson plans, texts, tests, and article reprints kept by police department.
  2. Many departments rely on the NHTSA Manuals dealing with field sobriety. If your department relies on these manuals, please advise in writing the website link to the specific manual relied on by Police department.
  3. Documents, which set forth police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of walk and turn.
  4. Documents, which set forth police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of finger to nose.
  5. Documents which set forth police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform other field sobriety tests, such as the one legged stand.
  6. Documents, which set forth procedures for officers in Police department to achieve certification or recognition as a DRE.
  7. The most recent training manual for Field Sobriety Testing by Police department.
  8. The NHTSA Manuals dealing with field sobriety in Police department.
  9. Documents from NHTSA dealing with field sobriety tests in Police department.
  10. Documents from NJ Division of Highway Traffic Safety dealing with field sobriety tests in police department.
  11. Documents used by police department involving HGN testing.


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Did you find this article helpful? Do you think more information like this would help you? More information is available. This material is excerpted from Criminal Law Forms, 2014, by Kenneth Vercammen, published by the American Bar Association Solo, Small Firm and General Practice Diviision. Copyright © 2014 by the American Bar Association. Reprinted with permission of the author. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Click here to purchase the book.


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