Considering Drunk Driving Charges Based on Breath Samples vs. Blood Samples

When looking at the process of charging a motorist with operating a vehicle while under the influence of alcohol, establishing proof of intoxication is a primary concern for the arresting officer as well as the local prosecutor who will eventually try the DWI case. There is no question of whether or not driving while intoxicated is a serious offense; it certainly carries severe penalties entailing stiff monetary fines as well as suspension of one’s driver’s license and potential jail time.

As New Jersey DWI-DUI defense attorneys, I and my colleagues know that just because a driver is stopped and charged with a drunken driving offense, it does not necessarily mean that there is no recourse for that individual. The law provides everyone an opportunity to defend himself in a court of law, and lawyers such as those at my firm are ready to represent people accused of DWI or drug DUI against accusations of impaired motor vehicle operation.

Currently, the state of New Jersey typically uses the Alcotest 7110 breath testing device, which has been ruled a legitimate piece of equipment for determining the blood-alcohol content (BAC) of a suspect via a breath sample. Manufactured by Draeger Industries and initially put into service in 2003, the Alcotest machine conducts two separate internal BAC tests; one that uses infrared radiation and another that employs and electrochemical process.

Though the Alcotest is said to be a fairly reliable BAC measuring device, the veracity of the readings from these machines are often challenged by drunk driving lawyers all around the country. One of the more frequent arguments against the validity of the readings is based on the potential for machine malfunction and/or improper administration of the test by police officers.

An alternative to the more common breath test is an actual blood test performed on a drawn sample of the driver’s blood. Though rarely used, an actual blood test can still be taken depending on the circumstances. One of the more common situations is when the suspected drunk driver is injured in an auto accident that precipitated that individual’s arrest.

Under the aforementioned circumstances, an officer will often request that the medical facility tending to the injured driver conduct a blood-alcohol measurement on a sample of the patient’s blood. While this test is quite often done at the hospital by professional medical staff, there are ways that a skilled DWI attorney can challenge the accuracy of the results. Chain of custody regarding the blood sample is one possible avenue for the defense.

In the mid-1960s case of Schmerber v. California, (384 U.S. 757), a ruling came down necessitating the prosecution in a DWI case must prove that the blood sample could not be obtained under normal circumstances and that the police officer’s actions of obtaining the sample without a warrant were justified under the particular circumstances.

A recent U.S. Supreme Court decision that disallowed the taking of blood samples in drunken driving investigations without a warrant caused several New Jersey legislators to introduce a law to help clarify the Supreme Court’s ruling. Based on news reports, the State Legislature was moved to introduce legislation in this regard due to the hundreds and hundreds of pending DWI cases could be in jeopardy, not to mention the future of drunk driving enforcement, which some fear could be hampered by the high court’s decision.

According to news sources, the U.S. Supreme Court decision in the case of Missouri v. McNeely represented a very real obstacle to future police investigations regarding accused drunken driving offenders. The actual case involved a blood sample that was taken involuntarily by Missouri police after a DUI suspect refused consent for a breathalyzer test.

Although New Jersey law provides penalties for breath test refusal with similar consequences as that of being charged with legal intoxication, police agencies reportedly do still come up against situations where an officer may need to resort to a direct blood or urine test for a DWI-DUI investigation.

The proposed legislation in Trenton likely would amend New Jersey’s “implied consent law” to include wording that would allow law enforcement agencies to take blood or urine samples under certain circumstances where taking a breath sample is hampered, or where drugs are suspected to have impaired a motorist’s driving skills. Under current law, police officers are permitted to take blood and urine samples in limited and usually emergency situations.

One of the reportedly primary reasons for the action by New Jersey’s state legislature is due to the fear that a warrant would be required before a blood or urine sample could be taken legally, which would increase the time and effort expended by police and, in turn, divert manpower from New Jersey’s roadways and possibly reduce public safety.

Lawmakers React To Supreme Court Ruling Limiting Involuntary Blood Tests In DUI Case, NJToday.net, May 3, 2013