Call For A Free Case Evaluation

Click to Email Us Now
inner banner
Schedule A Free Consultation

DUI Blood Test Lawyer in New Jersey

Experienced New Jersey Criminal Defense Lawyer Fights DUI Blood Tests In Middlesex County, Mercer County, Union County, Ocean County, and Burlington County, NJ

New Jersey DWI cases involving blood testing raise a host of defenses. Give my office a call today to speak with an experienced DWI defense lawyer who has successfully defended these cases in the past. We can discuss how to challenge a DUI blood test, including issues regarding the admissibility of laboratory reports, forcing the prosecution to present a chain of custody for your blood sample, constitutional principles pertaining to the seizure of blood, and other issues.

Was Your DUI Blood Test Unconstitutional According to the Fourth Amendment?

The Fourth Amendment states that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The key phrase here, as it relates to defenses for DUI blood tests, is citizens of the U.S. are to be secure from “unreasonable searches and seizures.” Because the case of Schmerber v. California in 1966 ruled that taking blood from a suspect is a search, one of the first things to consider with your DWI blood test attorney is whether or not the blood test was “reasonable.”

Looking at the case of State v. Ravotto we see the precedent for this strategy to challenge a DWI blood test.

The State’s taking of blood from a suspect constitutes a search within the meaning of the Fourth Amendment. Schmerber v. California (1966). Further, as noted, the police apparently made no effort to offer defendant a Breathalyzer test in lieu of the blood test in this case. While the police are not obligated to favor one test over the other, their failure to explore the possibility of administering the Breathalyzer test is a factor to be considered in an overall reasonableness inquiry. State v. Ravotto, 169 N.J. 227, 235-245 (N.J. 2001).

The following cases confirm that any search, including a DUI blood test, must be reasonable, and continue on to begin the guidelines for what constitutes a reasonable or an unreasonable search. 

Under the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, a search or an arrest by the police must be reasonable, measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette (1996); State v. Stelzner (1992).

With or without a warrant, the police may not use unreasonable force to perform a search or seizure of a person. Graham v. Connor (1989). “[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456. See also Abraham v. Raso (3d Cir.1999) (emphasizing that under Graham, “reasonableness should be assessed in light of the ‘totality of the circumstances’”).

This means that challenging a DUI blood test on the grounds of it being an unreasonable search due to the use of force is possible, but the court will ultimately determine what, in each circumstance, is deemed unreasonable. 

When it comes to a DWI Blood Test, What Makes a Search Unreasonable?

As mentioned above, the court will decide if your DUI blood test was unreasonable, but the following cases can help guide us to build a strong case that your DWI blood test is unconstitutional. 

More specifically, Graham instructs courts to employ a balancing test to determine whether the use of force in a given case is reasonable. The Supreme Court explained that the proper application [of the balancing test] requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Graham, supra, 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455.

Because the test is an objective one, “[a]n officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” Id. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456.

These cases imply that, if at the time of the test, you are not a danger to others or the officers, are not resisting arrest, and are not trying to flee, that if officers forcibly seize your blood you may be protected under the Fourth Amendment. 

DWI Blood Test Cases in New Jersey

There is a fine line between declaring a DUI blood test unconstitutional and constitutional. The following cases are examples of the use of the 6th Amendment as it pertains to DUI blood tests. 

Constitutional DWI Blood Tests

In State v. Burns, 159 N.J. Super. 539 (App. Div.1978), the police arrested the defendant because of his erratic driving. The defendant suffered a contusion on his forehead while in police custody, and the police transported him to a hospital for medical treatment. The defendant refused to consent to breath and blood tests. Because the medical personnel refused to take a blood sample without the defendant’s consent, the police took the defendant to a second hospital. Ibid. There, the defendant submitted to, but did not consent to a blood test.

The trial court suppressed the results of the blood test, concluding that it had been obtained contrary to N.J.S.A. 39:4-50.2, which, as noted, provides that “[n]o chemical test … may be made or taken [**309] forcibly and against physical resistance thereto by the defendant.” The court reasoned that the defendant was coerced into submission by being taken in handcuffs to the second medical center. Id. at 542. The Appellate Division reversed, concluding that the trial court had misinterpreted the statute. Ibid. The panel held that although the defendant may have been coerced into having his blood drawn, the test itself was not performed forcibly or against physical resistance. Ibid.

In another case that involved the submission of a drunk-driving suspect to a blood test, the Appellate Division again held that consent is not required to take a blood sample. Woomer, supra, 196 N.J. Super. at 585. In Woomer, the defendant, whose blood alcohol content was 0.225 percent, submitted to a blood test only after the police informed him that they could use force to take a sample. Ibid. The Woomer court thus held that the police properly may draw blood when they gain a suspect’s submission by a mild threat of force. Previous case law permitted such tests in instances when a suspect submitted without the threat or use of force.

Unconstitutional DWI Blood Alcohol Test 

In State v. Sisler, 114 Ohio App. 3d 337, 683 N.E.2d 106 (1995), the police arrested the defendant for driving while intoxicated and brought him to police headquarters. Id. at 108. There, the defendant slipped and injured his head, necessitating a trip to a nearby hospital before he could provide a breath sample for the drunk driving investigation. Ibid. Once at the hospital, the defendant refused to submit to a blood test for the purposes of the police investigation. Ibid. Two police officers, two hospital security officers, a physician, and a nurse held the defendant down so that a sample could be taken. Ibid. After several failed attempts, a blood sample was successfully taken. Ibid. An Ohio appellate court later overturned defendant’s conviction, holding that the blood draw was unreasonable.

New Jersey DUI Blood Test Defense Lawyer on Your Side

At the Law Offices of Anthony J. Vecchio, LLC we handle DWI and DUI charges throughout New Jersey. Call today for a consultation on how together we can challenge a DUI blood test that is threatening to disrupt your life.

Rating Methodology

Charges Dismissed

Criminal Offense

Charges Reversed

Jail Sentence

Charges Reduced


Charges Dismissed

Criminal Offense

Review Image
    “Mr. Vecchio was very thorough and efficient. His team was accommodating and the ultimate outcome was better than expected. Mr. Vecchio kept me up to date with every detail via emails and text messages. An all around good guy and family man.”
    “I have been working with Anthony on my husband’s out of state case for a few days now. He is punctual and doesn’t make you feel like you are asking too many questions in such a stressful time. He knows exactly what is happening before you even tell him. He is very professional and treats you like a human at the same time with the most respect.”
    "Anthony was instrumental in making the worst time in my life manageable. He's smart, intuitive and most of all he gave me peace of mind. I would recommend him to anyone looking for a sharp, progressive attorney who knows how to navigate the law."

1 / 3

Review Image