Submitted by New Jersey DWI Attorney, Jeffrey Hark
1st New Jersey Appellate Court Rejects the retroactive application of the US Supreme Court’s recent decision of Missouri v. McNeely, 133 S.Ct. 152 which requires a Search Warrants for DWI Blood Sampling
In April of 2013 the U.S. Supreme Court ruled in Missouri v. McNeely, 133 S.Ct. 152 (2013), the State must obtain a search warrant prior to taking a blood sample from a suspected drunken driver. This week in State v. Atkins, New Jersey’s Appellate Division has overturned a Law Division judge who applied McNeely retroactively to a DWI blood draw case pending at the time of the Supreme Courts April Ruling. The three-judge appellate panel on Friday overturned a trial judge’s suppression of blood-sample evidence taken of a suspected drunken driver in 2010, finding that “where the police acted in reliance on established legal precedent, suppressing evidence would not serve the purpose of the exclusionary rule to deter lawless police conduct.” The DAG handling the appeal on behalf of the state argued, “The case points out some obvious thing. At the time, the police were acting in full conformity with the law. What they did was exactly right.”
Factually, defendant Adkins was arrested on Dec. 16, 2010, after his car struck a utility pole. Two passengers in his car were injured. Adkins failed several field sobriety tests and was taken into custody. Shortly after 4 a.m., several hours after he was arrested, police took Adkins to a hospital and obtained a blood sample without first obtaining his consent or getting a warrant. Adkins agreed to the test several minutes after the sample was taken but later retracted his permission. The test showed that he had a blood-alcohol content of .157 percent. Based on McNeely, Superior Court Judge M. Christine Allen-Jackson ordered the results of Adkins’ blood test suppressed. On the state’s appeal, Appellate Division Judges Susan Reisner, Carmen Alvarez and Mitchel Ostrer conceded that McNeely “changed the legal landscape in New Jersey and many other states.” But they said retroactive application was inappropriate in view of Davis v. United States, 131 S.Ct. 2419 (2011), where the exclusionary rule was found not to apply when police undertook a search “in good faith reliance on binding legal precedent in the jurisdiction where the search occurred.”In Adkins’ case, the officer likewise followed established procedure. The U.S. Supreme Court in Schmerber v. California, 384 U.S. 757 (1966), and the state Supreme Court, in State v. Dyal, 97 N.J. 229 (1984), had said that taking blood samples from suspected drunken drivers without first obtaining a warrant was permissible. The Schmerber court said an exigency was created by the dissipation of alcohol in the bloodstream. The officer also was following the procedure established in 2005 by the Attorney General’s Office in Attorney General Guidelines: Prosecution of DWI & Refusal Violations. “Consequently, when the police obtained the warrantless blood sample from Adkins, they acted pursuant to well-established legal precedent in this State,” Reisner wrote for the panel. Since there was no misconduct here, applying the exclusionary rule would not serve its purpose of deterring illegal police activity, she said.
“[H]ere there was not a mistake by the police, good faith or otherwise,” Reisner said. “[T]hey were conducting themselves in a manner sanctioned by decades of precedent.”■
There are also several issues I believe are at play based on the appellate division’s ruling. First, there was no argument made that the defendant was or was not able to give consent, ‘ or was so prostrate of his facilities’ that was unable to give consent. Arguably, the appeals court was not willing to endorse a defendant’s withdraw of ‘consent’ once he realized what was going to happens when the police took his blood. Then I believe the theme that runs between the lines of the court’s decision was that the defendant was not so totally intoxicated with drugs, other substances, or alcohol. His BAC was .157. Yes that is almost double the .08 legal limit, however, he did not have such a high level of intoxication with other drugs that would have precluded him from understanding what was happening at the police department and later at the hospital. In other words, he know that he was going to have a high BAC even several hours later at the hospital and should not benefit from his change of mind at the hospital. Finally, I feel the court did read into the case the fact that the defendant should not be entitled to benefit from the police departments several hour delay. Remember, Adkins was not taken to the hospital immediately after his arrest; but rather several hours later. Why is that important? From the time of arrest to several hours later the defendant’s BAC could have been lowered .034-.05 percent; or from .207 down to the .157 reading at the time the blood was drawn! I have an appeal pending addressing these additional issues.