Can the police draw or take blood from me in the hospital if I was in a crash and was unconscious?

Do the police need a warrant to take blood from me in a hospital setting after a car crash?

State v. Zalcberg

The New Jersey Supreme Court issued a ruling firmed up and extended the excuses police need for obtaining a blood draw from a defendant in a DWI homicide crash investigation without a warrant!!!

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

In this case the defendant was involved in a motor vehicle crash. When the police came to the scene they discovered a mini bottle of alcohol in the consul of the defendants vehicle. The officers believe that there was “probable cause” of the defendant driving under the influence but because the driver was incapacitated they cannot ask any questions. The police had a standard practice of obtaining blood in the serious motor vehicle crashes and were not aware that a warrant could be obtained it telephonically. However, the officer in this case do not believe the search warrant was needed anyway for the blood draw at the hospital and none of the offices were actually trained in obtaining the telephonic warrant. When they took the defendant to the hospital the police instructed the staff to take a blood sample.

After the defendant was indicted for a very serious charges, because someone died as a result of the car crash, a motion was filed to suppress the blood draw because there is no warrant obtained to pierce the defendant’s skin and draw the body fluid/blood sample. The trial court suppressed the evidence at the time of the motion finding no exigency or emergency with regards to obtaining the blood. This issue was addressed by the US Supreme Court and a recent case several years ago called the McNeely. In that case the US Supreme Court ruled that the need for “exigency” with the metabolization of alcohol in the blood is not an adequate emergency that waives the 4th amendment warrant requirement. The US Supreme Court ruled that the need for “exigency” with the metabolization of alcohol in the blood is not an adequate emergency or excuse needed to obtain a blood sample without a warrant. The court required the blood sample to be taken only with the appropriate warrant.

However, our New Jersey Supreme Court and Appellate Division previously has determined that a warrant may not be required for a blood draw under “the totality of the circumstances“ measuring stick. The prior Appellate Division case, State v. Jones, was outlined in my blogs previously and involved a motor vehicle crash in Cherry Hill New Jersey. In that case of the defendant was involved in a three vehicle crash in a heavily trafficked area during rush hour and numerous police were called to the scene. In that case the court was worried about the concrete entrance way to the cemetery falling over and causing greater injury to others and the fact that traffic was snarled together with the reduced number of officers on duty as the “exigent circumstance“ as opposed to the metabolization of alcohol in the blood. In other words, the “totality of the circumstances“ facts creating t he “exigent circumstances” that the police can sidestep the warrant requirement will be a fact specific analysis for every specific case as a result.

Today the New Jersey Supreme Court applied the “totality of the circumstances” test again to determine if the exigency existed add a warrant was needed for the police and these individual factual circumstances of this case. The court ruled that the numerous duties of the police when they come to a serious motor vehicle crash together with the all of the officers’ lack of knowledge of the telephonic one system constituted that at exigency enough to relax the warrant requirement. As a result, now Police can say there was an emergency and so many things going on that we didn’t get the warrant and drew the blood as a basis to get around the warrant requirement for the serious motor vehicle crashes where alcohol or another illegal substance may have contributed to the intoxication of the defendant driver. This court focused in this case on the term “objective“ facts of the emergency which precluded them from getting the warrant under this totality of the circumstances argument.

What does this mean for defendant who is charged of the DWI that was involved in a crash it was incapacitated and could not say no to a consensual well draw?

It means, depending on what the police say in the police report and discovery regarding all the other activities surrounding the crash, if you are incapacitated in the police driveway you better have a good attorney to fight the facts and file the appropriate motion with the court.

I also believe the bigger issue in this case is with the coming legalization of marijuana in New Jersey the court is attempting to set up a mechanism where the police do not need to undergo the cumbersome or burdensome steps to obtain a warrant when they find a bag of weed or a joint in the car and smell burnt marijuana at the scene of a crash where there are injuries or for fatalities.

The court is opening the door and communicating to the police to memorialize the facts and circumstances surrounding their shortcut effort and blood draw at a hospital in order to get over the 4th Amendment warrant requirement hurdles.

If you have any questions regarding these facts you can read the attached case and please call my office to discuss this matter in greater detail. We handle all traffic in criminal matters related to DWI and other intoxicating substances around the state. We also represent individuals truck drivers ad employees who are injured at work injured in the course of their appointment or injured by others on the highway to the state of New Jersey by persons under the influence such as this defendant.

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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