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New NJ DWI Warrant Rule Could be Retro

NJ DWI Update: 

Here, the New Jersey courts seem to be dense when tasked with recognizing an assault.  In the case at hand,  the courts seem to believe that forcing a needle into the arm of a suspect by force and without consent, and drawing the life sustaining fluid (blood) on the say so of police officers suspicion is lawful.  The courts even after the McNeely decision, ignore the US Supreme Court and allow for these warrantless seizures and assaults to continue. This rather ignorant and abusive conduct is evident of the overall disrespect that the liberals have for basic human and civil rights.  More interesting is that the predominant victims of these abuses are the urban population  whom liberal politicians find their support from.  In other words, the poorer people are being abused by their own political picks.

If you've been charged with a NJ DUI, call today for your free consultation and speak with a NJ DWI Attorney by calling 800-709-1131.

NJ Justices Weigh Applying DWI Warrant Rule Retroactively

, New Jersey Law Journal

New Jersey's highest court is considering whether to retroactively apply a 2013 ruling by the U.S. Supreme Court that said police generally must get a search warrant before obtaining blood samples or demanding urine samples from suspected intoxicated drivers.

The state Supreme Court on Dec. 3 heard arguments in a pair of cases—State v. Adkins and State v. Verpent—and is set to determine whether the U.S. Supreme Court's ruling in Missouri v. McNeely means that past police practices in the state, where warrants were rarely obtained, violated defendants' constitutional rights if those defendants did not consent to providing the samples.

In the first case, defendant Timothy Adkins was arrested in December 2010 after his car struck a utility pole. Adkins failed several field sobriety tests and was taken into custody, according to the Appellate Division's opinion last year.

Two hours after the arrest, police took Adkins to a hospital and obtained a blood sample without his consent or a warrant. The test revealed a blood-alcohol content of .157 percent, nearly twice the legal limit for driving.

In the second case, defendant Kenneth Verpent was arrested in December 2008 after his tow truck struck a car driven by a woman who was waiting at a toll plaza near the George Washington Bridge. The investigating officer said while there was no evidence that Verpent had been drinking, he was "'a mess'" and failed several field sobriety tests, according to the Appellate Division opinion in the case. It was estimated that Verpent's truck had been traveling at between 27 and 33 miles per hour at the moment of collision.

At the police station, Verpent passed a breath test. He refused to submit a blood sample, but did agree to give a urine sample. The urine sample tested positive for cocaine and marijuana, and an expert testified that Verpent was in the "'downside crash phase'" at the time of the accident, according to the opinion. Verpent later moved to suppress the results of the urine test on the grounds that the police had not obtained a warrant.

In both cases, the Appellate Division upheld the validity of the tests.

Adkins' attorney, Richard Klineburger III, suggested at oral argument Dec. 3 that the question of retroactivity may not even have to be answered in this case because the police acted improperly even under the guidelines operating at the time.

"Here, there were no exigent circumstances" that warranted taking a blood sample without first obtaining Adkins' consent, said Klineburger, of Klineburger & Nussey in Haddonfield, N.J. Unlike a case in which the suspect is injured, there was no emergency here, he said.

"We're talking two hours" between the time of the arrest and the taking of the blood sample, Klineburger said.

Chief Justice Stuart Rabner asked Klineburger if he was basing his argument on police misconduct.

"Yes," Klineburger said. "I'm not sure if it's malfeasance. I'm not sure if it's negligence. I don't care."

Klineburger also noted that the police, for some reason, chose not to administer a breath test even though there was a testing machine in the same room where Adkins was being held.

"It was 10 feet away," Klineburger said.

Cherry Hill, N.J., solo Jeffrey Gold, representing the New Jersey State Bar Association, argued that the appeals court rulings amounted to a violation of Adkins' constitutional rights. In addition to that, he asked the court to reaffirm its long-standing opposition to crafting a "good-faith" exception to the warrant requirement.

Assistant Attorney General Ronald Susswein said that in Adkins' case, the police were acting under the law at the time and that police officers are trained to follow rules that are based on state Supreme Court rulings.

"The police were acting under the rules you set for them," he said. "The training was spot-on."

Responding to a question from Justice Barry Albin, Susswein said McNeely should not be applied retroactively because it represented a sharp departure from established practice.

Justice Anne M. Patterson asked how many cases could be affected if McNeely were to be applied retroactively. Susswein said he had no hard figures but added that he suspected there were not that many cases involving blood samples to begin with.

As in Adkins' case, Verpent's attorney, Roseland, N.J., solo Frank Gennaro, suggested that the court may not have to consider retroactivity since the police waited for four hours to demand he submit a urine test and could have obtained a warrant during that time.

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