Does McNeely Provide Steely Protection Against Warrantless BAC Testing?

I. Introduction

            Drunk driving is a serious crime and jurisdictions all across the nation have increasingly imposed stringent penalties upon those who violate the law.[1]  Generally, convictions are sustained on the basis of the police officer’s testimony and by some kind of test: a “breathalyzer” test or a blood alcohol content test (“BAC”).[2]  Recently, the United States Supreme Court noted that all fifty states have adopted implied consent laws.  Such consent to BAC testing is a condition to the privilege of driving and is required by the driver if he or she is either arrested or detained on suspicion of driving while intoxicated.[3]  Moreover, some states, such as New Jersey, have enacted statutes that punish those who refuse to take a BAC test.[4]

            Before the U.S. Supreme Court decided McNeely, police officers could require motorists suspected of drunk driving to take a blood test without a warrant, even after the driver refused.[5] However, the Court in McNeelydetermined that such an intrusion is no longer appropriate under the protections of the Fourth Amendment.[6]  Both the Federal Constitution and the New Jersey Constitution provide for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause.”[7]  The question that follows is how, if at all, does this change New Jersey’s practice, and does this actually provide increased protection for citizens who refuse to have their blood taken without a warrant?

II. The U.S. Supreme Court Overturns Precedent 

            Nearly fifty years ago, the Supreme Court set a precedent in the case of Schmerber v. California by affirming the conviction of a defendant who was found guilty of driving while under the influence, despite the defendant’s argument that withdrawing his blood not only without his consent, but also without a warrant violated his Fourth Amendment right to “not to be subjected to unreasonable searches and seizures.” [8]   The Court argued that the manner in which the officer took the blood sample was reasonable and that based on a reasonable belief that the delay in obtaining a search warrant would cause the destruction of evidence, the officer was not required to obtain a warrant before extracting the defendant’s blood.[9]

            The Court reasoned a warrant is not necessary because the evidence needed to prosecute and convict someone suspected of drunk driving is the amount of alcohol in the person’s blood, therefore any delay in obtaining a warrant could cause the body to metabolize the alcohol and possibly destroy evidence.[10]  The Court deemed such a circumstance as an exigency, which is an exception to the Fourth Amendment warrant requirement.[11] Ultimately, the blood test was admissible and the conviction was affirmed.

            Most recently, in the McNeely case, the Supreme Court overturned precedent and found that simply because the body metabolizes alcohol, a per se rule of exigency does not exist.[12]  The Court concluded, “[w]e hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.”[13]  The Court, much to the dismay of the states and the dissent, did not elaborate on any factors with which police officers may rely upon to determine if a warrant is required.[14] The Court alluded to a guideline by stating, “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”[15]

III. The Effect of McNeely on New Jersey Law

            As noted above, New Jersey has several statutes that deal with drunk driving.  The first statute prohibits driving while intoxicated, and sets the legal limit of blood alcohol to 0.08%.[16] Interestingly, all fifty states have set the legal limit to 0.08% because the Federal Government has conditioned federal highway grants on this limit.[17] Typically there are additional penalties for even higher BAC levels, which are set at 0.10% in New Jersey.[18]  The second statute provides for the implied consent of BAC testing,[19] and the third provides penalties for refusing to submit to a chemical test.[20]

            New Jersey courts have followed the Schmerber rule, and have admitted blood tests without a warrant under the exigency of the destruction of evidence rule.[21]  The most recent case, State v. Adkins, acknowledged the change laid out in McNeely, but declined to apply it because the procurement of blood from the defendant was done before the McNeely decision was handed down, therefore the actions of the officer were based on sound state precedent.[22]  Future drunk driving arrests will be required to follow the McNeely decision.

            Courts have found defendants guilty of driving while intoxicated (“DWI”), even when a BAC test was not provided.[23]  The defendants in such cases refused the BAC test, and were subsequently charged and found guilty of refusing to submit to chemical testing.[24]  This indicates that test results of actual blood alcohol levels are not necessary to convict defendants of DWI. However, as the Court noted in McNeely, the suppression of warrantless BAC tests will provide a hurdle for prosecutors since all fifty states make it a crime per se to have a BAC over 0.08% and without a blood test, it will be difficult to prove the defendant’s blood alcohol level.[25]

IV. Conclusion

            While the Court in McNeely provided some additional protection for motorists who are pulled over on suspicion of drunk driving, in many cases the State will still likely be able to succeed on its claim of DWI.  The case-by-case analysis to be used in determining if a warrant was needed to perform a chemical test now creates a viable argument for defendants who claim that the test results are inadmissible.  However, as indicated above, New Jersey courts have been able to convict defendants of DWI without the BAC results, and there is no indication that this must change.  Consequently, under the analysis set forth in McNeely, it seems motorists can still be charged with and potentially convicted of both DWI and refusing to take a chemical test, rather the only new caveat is whether the officer must obtain a warrant to force the defendant to take a chemical test after he or she refused to do so.