Originally published here, by Mary Pat Gallagher – New Jersey Law Journal
A bill in the New Jersey Legislature would subject drivers involved in fatal accidents to mandatory blood testing for drugs, without the need of police to show probable cause.
Current N.J. law deems drivers to have given their consent to provide blood samples to test for alcohol. The bill would expand that consent to blood samples and testing for “narcotic, hallucinogenic, or habit producing drug.”
The bill is named Michelle’s Law for Michelle Sous, a 17-year-old who was hit by a pick-up truck while crossing the street in front of her North Haledon home last March 17, St. Patrick’s Day, and died at the scene.
Police said they did not test the driver for drugs or alcohol because they found no probable cause.
The bill, A-4464, states: “A blood sample shall be obtained at any time a person has been operating a motor vehicle involved in an accident resulting in the death of another person.”
In addition, it would impose the same license suspension penalty for refusing a blood test as for refusing to provide a breath sample.
The existing refusal statute requires municipal judges to determine whether the arresting officer had probable cause to believe the driver was intoxicated or on drugs.
Defense lawyers doubt the bill will pass constitutional muster.
“I don’t see how they get around Missouri v. McNeely,” says Assistant Public Defender Dale Jones.
He refers to an April 17 holding by the U.S. Supreme Court that, as a general rule, the Fourth Amendment requires police to obtain a search warrant or consent to extract blood from a driver to test for alcohol.
McNeely held that the fact that blood-alcohol levels drop over time does not categorically create the exigent circumstances needed for an exception to the warrant requirement. Rather, the issue must be decided case by case, based on the totality of the circumstances.
Springfield solo Joel Rachmiel calls the legislation “an unwise knee-jerk reaction to a tragic death” and predicts it will be struck down. He says police can obtain a telephonic warrant in 30 minutes or less, adding “there is no reason they shouldn’t do so.”
Rachmiel is appealing a judge’s refusal to suppress warrantless blood-test results in a vehicular homicide case.
His client — found unconscious in the back seat of a car whose other occupant was killed in a rollover accident — was taken to a hospital, where a blood test hours later at the request of police, and while he was still unconscious, found a .084 percent blood-alcohol level.
Union County Superior Court Judge Robert Mega denied a motion to suppress on Aug. 19. He applied McNeely retroactively but found exigent circumstances: that by the time the officers left the scene hours later, any further delay to get a warrant would have undermined the validity of the blood sample.
Criminal defense lawyer John Hogan, of Wilentz, Goldman & Spitzer in Woodbridge, says he understands why victims’ families want answers, “but we have a constitution that limits what the government can do.”
Prosecutors look on the bill more favorably.
Jon-Henry Barr of Clark, president of the Municipal Prosecutors Association, says the organization will probably support it to the extent it makes it easier to admit blood-test results. “Some [association] members may want to explicitly state not just death, but serious bodily injury as well.”
Assemblyman Sean Kean, R-Monmouth, also a municipal prosecutor, notes that drivers in the worst cases are often unable to perform the field sobriety tests that provide a basis for probable cause or can be too injured to consent to testing.
The Attorney General’s Office declines comment through spokeswoman Rachel Goemaat, terming it “premature.”
The bill was filed Sept. 9 but will not be formally introduced until the Assembly is next in session, which might not occur until November. At that point, it will likely be sent to the Assembly Law and Public Safety Committee, chaired by one of the sponsors, Charles Mainor, D-Hudson.
The other sponsors are Democrats Benjie Wimberly and Shavonda Sumter, both of Passaic County, and Gordon Johnson of Bergen.•
This article originally appeared in the print edition under the headline “Law Would Require Blood Testing For Drugs After Fatal Accidents.”