Yes, you can, but not necessarily in all cases. Blood samples, according to the New Jersey Supreme Court case of State v. Ravotto, can be taken involuntarily, as long as the police use "reasonable force" to do so. But what constitutes "reasonable force"?
The courts determine this objectively and measured "in light of the facts and circumstances" confronting the officers at the time. The U.S. Supreme Court case of Graham v. Connor instructs courts to use a balancing test.
What Constitutes "Reasonable Force"?
There needs to be "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."
As this shows, each case is different and turns on its facts, so if the police took your blood forcibly, then the circumstances surrounding them must be scrutinized.
Do the Police Need to Show Probable Cause?
But if the police want to get any blood test into evidence against you, they will need more than proof of "reasonable force." They still need to show probable cause. Why? Because a blood draw is considered a "search and seizure" under the Fourth Amendment, and as such must be done pursuant to probable cause and a warrant from a judge.
So as you can see, if the police want to take a blood sample to prove your blood alcohol content (BAC) was over the legal limit, and you refuse to give them one voluntarily, then they must overcome both challenges. They must prove both probable cause and reasonable force or face a judge throwing it out at time of trial.
Bottom line: they might take it by force, but they may not be able to use it against you later..
So What Do I Do?
Since proof of a BAC of 0.08% (0.04% in a commercial vehicle) will convict you of a DUI, a challenge to the police's conduct in taking a blood sample by force is critical and could make the difference between being convicted or acquitted.
If you have been charged with drunk driving in Burlington, Camden, Gloucester, Salem or Cumberland County, please feel free to call me at 856-432-4113 or contact me through this site to schedule an appointment in my Woodbury office to discuss your case.
If you are looking for additional information on New Jersey's drunk driving laws, then download my free book, How Much Trouble Am I In? A Guide to New Jersey Drunk Driving Law.
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