Exigent Circumstances Required to Draw Blood without Consent or Warrant

On today’s date the New Jersey Supreme Court decided to apply the case of Missouri vs.  McNeely retroactively to all cases in their decision of State v. Adkins.

If you recall Missouri vs McNeely is the US  Supreme Court case we wrote about 18 months ago. The issue was whether the police were required a obtain court ordered search warrant in order to obtain a blood draw when the defendant was unable to provide consent.   The US Supreme Court said that based on the possibility of lack of evidence of alcohol due to the evaporation of alcohol in the blood system, was not enough exigency to waive the warrant requirement for the removal of bodily fluids from a defendant citizen under the fourth amendment of the Constitution.

The court required the state to prove “exigent circumstances” on the police’s half which would entitle them to obtain the blood draw without a warrant.  Under many circumstances the police drew blood without first showing or identifying “exigent circumstances” which would alleviate the legal requirement of a warrant.  In New Jersey the issue arose on numerous occasions.  The police would routinely extract blood on the thread without any evidence of any “exigent circumstances quote and use the toxicology results to charge individuals with a DWI. Defendant Adkins argued that the state did not prove exigent circumstances when they drew his blood without a warrant and as a result given the pendency of McNeely, the toxicology results should have been suppressed.

The prosecutors argued McNeely was a new criminal procedure and as a result should not apply retroactively to all pending cases. Today the New Jersey Supreme Court ruled McNeely apply to all pending cases in the Municipal Court, Law Division, Appellate Division and the like. In other words the state is required to prove ‘exigent circumstances’ which would excuse the need for a warrant to be obtained.

Now the trial court’s focus will turn to the attendant circumstances surrounding a motor vehicle stop and the police officers ability to obtain the blood draw without consent and without a warrant.

In a vast majority of these cases the police will also allege some circumstances which precluded them from using their cell phone to call the municipal court judge that is assigned on duty for exigent circumstances after hours phone calls.  In the alternative, they will say that the rest of the police force is on duty and driving around and unable to contact another judge to obtain a warrant because they were involved in motor vehicle traffic control an emergency circumstance of us dictations pertaining to the defendant under investigation.

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