Blood and Urine Testing in DWI and DUI Cases
Interviewer: When someone is accused of DWI or DUI from drugs and the blood test goes to a lab, what are some different things you look for to help someone with his or her case?
Leckerman: There are a couple of different methods the police in New Jersey use to identify drugs in a suspect’s system. Police will often use urine tests, but some police departments will go for blood tests. The blood tests usually occur when an accident has happened and then the person has to be taken to the hospital. If a breath test reveals that the person was well under the legal limit or had no alcohol in his system, then a police department will typically try to get a urine sample from the suspected DWI driver after arrest.
Interviewer: What happens if you can’t pee?
Leckerman: A police officer can ask you for a urine sample, but you are currently under no obligation to provide urine in New Jersey. If an officer in New Jersey requests a breath test, and you comply, you have fulfilled your legal obligation. Breath testing is a requirement under current implied consent laws, but urine testing and blood testing, as the law stands currently, are not required from a driver. So if the police officer asks for urine and the driver says, “I can’t pee,” or “I don’t want to give you a urine sample,” then there’s really nothing the police can do. They can try to charge the driver with refusal but that wouldn’t stand under the current state law.
Interviewer: What about for blood, can you refuse that too?
Leckerman: Yes, you can refuse a blood test in New Jersey. A driver must only comply with blood testing if they are arrested for a suspected DWI. Moreover, recent case law decided by the United States Supreme Court in McNeely vs. Missouri, the Court declared that a driver has the right to refuse a blood test unless the police get a warrant to take blood. In other words, the police have to have probable cause that a DUI occurred and that there are emergency circumstances in order to take blood samples without a warrant and without the consent of the driver.
Interviewer: In New Jersey, are you seeing police getting warrants for blood?
Leckerman: It wasn’t the practice for many years. The United States Supreme Court decided a case this year that had to do with taking blood samples without warrants. So, I believe that many police departments are now familiar with the constitutional requirements that have been outlined under this Supreme Court case, McNeely vs. Missouri. Breath testing is the standard in New Jersey, so blood testing isn’t routinely done. The only time I’ve really seen blood testing done is after an accident had occurred. Accidents don’t occur too often in New Jersey, where the person has to be taken to the hospital and the police have access to a phlebotomist or a nurse to extract blood.
Interviewer: If a blood testing result is being used by the prosecution against someone, is it usually because the police asked the person to provide a blood sample and the person felt obligated to do it?
Leckerman: Obviously, the answer to that question has to do with whether the driver was unconscious or conscious. With unconscious drivers, the police need probable cause and an emergency circumstance to take blood without a warrant. For conscious drivers, the police need consent but the consent needs to be voluntary and intelligent consent to be a valid blood draw.
Did the officer advise the driver that he or she has the right to say no without the police going and getting a warrant first? Arguably, if the police or officer didn’t tell the driver that he or she had the right to say no and make the officer get a warrant, then the consent may be deemed involuntary by the court. The consequences would be that the blood that was unlawfully taken and the test results would be information that would be excluded as evidence later on.
Interviewer: How often are urine tests done?
Leckerman: Urine tests are typically done after a driver’s arrested for suspected DUI and the officer believes drugs may be involved. First, the officer does a breath-test and confirms if alcohol is the cause of this suspicion of the DWI. A drug recognition evaluator (DRE) may be brought to the station to do an evaluation. At the end of the evaluation, the DRE officer asks for a urine sample. Sometimes the police won’t have a DRE available and they will just take urine and hope the laboratory is going to find some drugs in the urine sample. However, there are a lot of scientific issues that crop up where urine is tested as opposed to blood.