Blood Tests in DWI Cases

New Jersey Police Agencies rely on the breathalyzer to provide the evidence of a suspected drunk driver’s blood alcohol concentration (BAC)┬áin the vast majority of cases. However, there will be occasions when the police will seek to obtain this vital evidence by taking a sample of the defendant’s blood for testing and analysis. Typically, the extraction of a blood sample from the body of the defendant in a drunk driving case will occur in the five situations:

1) Defendant Has Been Injured: Police Blood Samples

When the police respond to the scene of a motor vehicle accident, one of their primary responsibilities is to provide immediate care and seek emergency medical treatment for those who have been injured. During the course of their investigation, the police may develop evidence that leads them to believe that one of more of the operators of the motor vehicles involved in the accident may have been under the influence of drugs or alcohol. If the level of belief rises to probable cause, the police may effect the arrest of the operator for a violation of N.J.S.A. 39:4-50(a). However, due to injuries sustained in the accident, the defendant may require immediate medical treatment at a hospital or other emergency medical facility. This fact prevents the police from having the defendant take a breath test within a reasonable period of time after operating the vehicle. Thus, when confronted with this situation, the police may request the attending medical staff to extract samples of the defendant’s blood for purposes of determining the blood alcohol concentration (BAC).

2) Defendant Has Been Injured: Hospital Blood Samples

There will be times when the injuries are so severe to the defendant that the police will be unable to secure independent blood samples for their own use. Generally, this is due to the fact that the doctors or other emergency room personnel are working on the defendant in an effort to save his or her life. However, in virtually every case, the hospital will withdraw blood from the body of the defendant and perform a drug and alcohol screen in order to determine the level of alcohol in the defendant’s body, and to identify any drugs which may be present. Obviously, emergency room personnel need to know this information to avoid introducing substances into the defendant’s body during treatment that may adversely interact with the drugs and alcohol in the defendant’s system. New Jersey law provides procedures whereby the investigating police can receive a copy of the results of the blood screen taken by the emergency medical personnel.

3) Defendant Refuses to Provide a Breath Sample

New Jersey law requires a motorist who operates a motor vehicle on any street, road, or highway to voluntarily provide breath samples for purposes of determining his or her blood alcohol concentration (BAC). See State v. Dyal 97 NJ 229 (1984). These tests are a vital component of a drunk driving prosecution. The results may constitute sufficient evidence to prove a per se violation of the drunk driving statute. Since breath samples cannot be extracted involuntarily, an individual’s Breath Test Refusal frustrates the prosecutor’s ability to prove a driving while intoxicated or driving under the influence charge. Law enforcement may resort to blood testing as a means of obtaining samples as there is no ability to refuse the drawing of samples. See Schmerber v. California, 384 U.S. 757 (1966). Thus, if the police have probable cause to believe that the defendant has operated a motor vehicle in violation of N.J.S.A. 39:4-50(a), they may transport him or her to a suitable medical facility and have a blood sample taken by medical personnel, against the will of the defendant, if necessary. See State v. Ravotto, 169 N.J. 227 (2001).

4) Defendants Blood Alcohol Content (BAC) is Dangerously High

In this case, the defendant has voluntarily provided a valid breath sample for the breathalyzer. Evidence of a dangerously high blood alcohol concentration from the breathalyzer may prompt the police to transport an arrested defendant to a hospital or other medical facility for additional testing, treatment, and observation. Many police departments in New Jersey develop Standard Operating Procedures which mandate blood testing at a hospital when the results of the breathalyzer are in excess of a given level. In New Jersey, the legal limit is .08%. Therefore, for example, a blood alcohol concentration in excess of .28% (almost 4 times the legal limit) may prompt the police to transport the defendant to a hospital. Levels of intoxication this high, when left untreated, can result in serious complications or death.

5) Defendants Blood Alcohol Content is Dangerously Low: Suspected Drug Use

Defendants who are arrested for drunk driving may sometimes exhibit conduct while in custody that is inconsistent with their blood alcohol content (BAC). The defendant may voluntarily submit to a breath test and show a very low reading, such as .02% or .05%, which is under the legal limit in New Jersey which is .08%. However, the defendant’s mental faculties and physical coordination may be profoundly affected such that experienced police officers reasonably believe that narcotics may be involved. The defendant may have trouble standing or walking. He or she may be unable to stay awake or be incoherent. When confronted with this factual scenario, the police will transport the defendant to a hospital or other suitable medical facility for blood testing. The police may also request a urine test. These proofs may be the only evidence available to prove that the defendant operated his or her motor vehicle while under the influence of drugs or alcohol. See State v. Tamburro, 68 N.J. 414 (1975).