NJ: Totality of circumstances test must be applied to warrantless blood draws for BAC

The trial court erred in not applying the totality of circumstances test to McNeely/Schmerber on whether a warrant was required for a blood draw. Reversed. State v. Jones, 2014 N.J. Super. LEXIS 106 (July 29, 2014):

The Supreme Court explicitly declined to adopt the Chief Justice’s “modified per se rule,” favoring instead the “traditional totality of the circumstances analysis.” Id. at __, 133 S. Ct. at 1563, 185 L. Ed. 2d at 710. Of particular importance to an analysis of the facts here, McNeely described the special facts considered in the Schmerber Court’s analysis which, the Court agreed, were sufficient to support a warrantless blood test:

[T]he petitioner had suffered injuries in an automobile accident and was taken to the hospital. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. … [W]e concluded that the warrantless blood test “in the present case” was nonetheless permissible because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.'”

In support of that conclusion, we observed that evidence could have been lost because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” We added that “[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” “Given these special facts,” we found that it was appropriate for the police to act without a warrant.

[McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1559-60, 185 L. Ed. 2d at 705-06 (emphasis added) (internal citations omitted).]

The Court described the analysis in Schmerber as “fit[ting] comfortably within our case law applying the exigent circumstances exception.” Id. at ___, 133 S. Ct. at 1560, 185 L. Ed. 2d at 706. Notably, the Court did not dissect precisely how much time was used to take the accused to the hospital or required to investigate the scene of the accident, and it did not evaluate in hindsight whether the officers on the scene allocated their resources efficiently.

In sum, the “special facts” that supported a warrantless blood sample in Schmerber and were absent in McNeely, were present in this case: an accident, injuries requiring hospitalization, and an hours-long police investigation. Therefore, it was not necessary for the officers to shoulder the further delay entailed in securing a warrant that would have threatened the destruction of the blood alcohol evidence. Defendant’s suppression motion should have been denied.