Article by Daniel A. Levy, Esq.

In New Jersey, if a driver is pulled over and suspected of drunk driving or driving while intoxicated/under the influence (“DUI”), the officer may ask the driver to submit to a breath, urine, or blood test. Clients have asked us whether they must take the test or if they have the right to refuse. Below we discuss some of the legal issues involved and proposed legislation that may change the legal framework in New Jersey DUI cases.

Do I have to take the Alcotest?

If you were pulled over and the police office believes that you may be driving while drunk, the office may take you to the police station and ask that you submit to a breath test, also known as the Alcotest. In New Jersey, there is a law that says that all drivers “shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle [while under the influence of alcohol].” N.J.S.A. 39:4-50.2. So according to the law, the driver generally does not have the right to refuse to take the test. The law goes on to say that the officer must warn drivers that if they refuse to take the test, they will be ticketed for an additional violation – under N.J.S.A. 39:50.4a refusing to submit to the test carries a minimum of 7 months suspension of your drivers license and a $300-$500 fine, plus extensive fees. If the officer fails to read the warning, the ticket will be thrown out since that is a necessary element of proving the offense.

For these legal reasons, a driver is not legally entitled to refuse to submit to the breath test. If they do refuse, they will face additional charges. However, the law says that if the driver refuses then the officer is not allowed to physically force them to take the test. N.J.S.A. 39:4-50.2(e). If the driver believes that the officer was not entitled to ask them to take the test in the first place (for example, they had no reasonable suspicion that the person was drunk, they were pulled over for an improper reason, etc.), then they must still take the test, but their attorney can challenge the test later on in court.

Do I have to provide a urine or blood sample to the police?

According to the current law in New Jersey, it is not unlawful for a person to refuse to submit to a blood or urine test, absent court order. Police often ask drivers to take these tests, but they generally do not advise them that they have the right to refuse the test. Normally, the police would need a warrant to obtain such samples. In fact, a recent United States Supreme Court case, Missouri v. McNeely, held that taking a person’s blood or urine without consent amounted to a search, and under the 4th Amendment to the U.S. Constitution, the police would need a warrant or consent to take the samples.

Currently, legislators in New Jersey are attempting to avoid the ruling in McNeely and pass legislation making it unlawful to refuse to provide blood and urine samples. “We’re closing a loophole so that the police will not have to get a warrant before taking a blood or urine sample,” says one of the sponsors, Sen. Shirley Turner, D-Mercer. “McNeely is an opening for the defense bar to challenge blood-draw cases,” says Assembly sponsor Reid Gusciora, D-Mercer, municipal prosecutor in Princeton, Lawrence and Hopewell Borough, who says contests are imminent in two of his pending cases. “This ruling could create a headache for municipal prosecutors. It could lead to a situation in which police officers will not be able to take blood or urine samples without a warrant,” he says.

The two Senate bills, S-2933 and S-2939, are arguably attempts to exempt the State of New Jersey from the Supreme Court mandate in Missouri v. McNeely. If passed, the bill could be overturned on appeal because a State is not allowed to pass legislation that exempts the State from complying with the U.S. Constitution. What is also troubling is that neither proposed bill contains the requirement that the officer advise the suspect that it is an additional violation to refuse to provide a sample (unlike with breath tests, where the officer is required to read a written warning to the suspect). Further, S-2933 actually says that police may use “reasonable force” to obtain a blood sample “in a medically accepted manner” if a suspected drunken driver has caused serious injury or death. I submit that forcibly restraining a person and taking their blood without a warrant or court order is not consistent with traditional notions of Due Process or the protections of our Constitution in New Jersey.

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