Implied consent means a person’s actions infer permission, even though they have not expressly granted that permission.
Examples of implied consent include an individual rolling up their sleeve to have their blood pressure tested or an unconscious person being treated for a life-threatening injury at a hospital. In both situations, although consent has not been verbally expressed, it can be reasonably assumed that the person has given or would give their permission or consent.
New Jersey’s implied consent law requires drivers to take a breath test if they are arrested for suspicion of DUI. It does not, however, require that you provide a blood sample.
In New Jersey, you can be lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated. If you have a NJ driver’s license — through the state’s Implied Consent Law — you have already agreed to taking a chemical test of your breath for the purpose of determining your blood alcohol content (BAC).
Refusing to Take a Breathalyzer Test
If you refuse to take the Breathalyzer BAC (blood alcohol content) test, you may be charged with refusal to submit to the BAC testing in addition to the original DWI/DUI charges. If you are convicted of both charges, you will pay one fine for refusal to submit and a separate fine for the associated DWI/DUI.
The Implied Consent Law in NJ does not cover blood samples. If a police officer arrests a driver for suspicion of driving while intoxicated, they are not required to consent to providing a blood sample for the purpose of determining BAC.
Other Sobriety Tests
There is no implied consent in New Jersey to standardized field sobriety tests (SFST) or drug recognition evaluation (DRE).
Defense Against BAC Tests
There are a number of DUI and DWI defenses in New Jersey — from an illegal motor vehicle stop, to failure to read implied consent warnings, to not following proper procedures when drawing blood.
Breathalyzer test results can be questioned on the proper operation of the Alcotest 7110, the machine New Jersey law enforcement uses to measure blood alcohol content.
Blood test admissibility can be questioned on the police following proper protocol, which includes:
- Asking for consent
- Obtaining a search warrant
- Having the test performed by a hospital professional
- Using a special sealed blood kit
- Sealing the sample
- Storing the sample in the evidential refrigerator at a state police lab
It is imperative that you seek experienced legal representation to prepare a defense against DUI/DWI charges.
Implied Consent Law Definition
The Implied Consent Law (N.J.S.A. 39:4-50.2(a)) reads, “Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State 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 in violation of the provisions of [New Jersey’s DUI statute].”
The United States Supreme Court Rules
In the absence of consent, may an arresting officer force a driver to provide a blood sample when they are arrested for suspicion of DUI? On April 17, 2013, in Missouri v. McNeely, the United States Supreme Court determined that either a consent, exigency or a warrant is required before police may draw blood.
In the case, Missouri police stopped Tyler McNeely’s truck for speeding and crossing the centerline. After declining to take a breath test to measure his BAC, McNeely was arrested and taken to a hospital where he again refused to consent to a blood test. The arresting officer directed a lab technician to take a sample of McNeely’s blood, but did not make any attempt to secure a search warrant. McNeely’s BAC tested above the legal limit and he was charged with driving while intoxicated.
The trial court ruled that McNeely’s blood alcohol dissipating was not, in and of itself, enough to prove exigency and, therefore, the test results were suppressed. The Missouri Supreme Court held up this decision.
The U.S. Supreme Court vaguely agreed as well, ruling that exceptions to consent laws must be considered in the context of the whole situation. Although BAC dissipates naturally over time, the court argued modern request processes for warrants negate the argument that an officer had no choice but to collect evidence immediately.
The 1983 case State v. Valencia authorizes New Jersey officers to use telephone warrants. According to a 2009 case, State v. Pena-Flores, there is no exigency requirement to obtain a telephonic warrant in NJ. If you have been charged with a criminal offense or DUI/DWI in Burlington County as a result of a blood draw, you should speak with a Burlington County criminal lawyer to determine how the decision in Missouri v. McNeely impacts your case.
In consideration of those factors, the USSC held that circumstances should be evaluated done on a fact-specific, case-by-case basis: In “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.”
The consequences of a DUI in New Jersey can be harsh. It is important to entrust your case to an experienced DUI attorney. The Rosenberg | Perry & Associates legal team will work to get your charges reduced or dropped, sparing you the numerous repercussions associated with charges for driving while intoxicated. Contact us for a consultation to speak about your case.