No, you cannot. As with giving breath samples for a Breathalyzer, New Jersey law requires you to give a blood sample, where appropriate, to determine your Blood Alcohol Content (BAC). In fact, this is true throughout the country, as the law comes from the U.S. Supreme Court in the case of Schmerber v. California. However, that is where the similarity ends.
Can I Face Charges for Refusing a Blood Sample?
The consequences for refusal, however, are different. As there is no practical way to compel someone to give breath samples, the outcome is a charge of Refusal that carries the same consequences as drunk driving. There is no penalty for refusing to give the blood, however. The downside is that the State can ask the court to draw a negative inference from your refusal (i.e. Judge, he refused the sample because he knew he was drunk).
In addition, blood samples, however, 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.
Do the Police Need a Warrant for One?
Yes, they do. 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 issued by a judge.
Therefore the police must meet this burden, otherwise the BAC reading can be thrown out by the court. It can also be thrown out if it was obtained through an "unreasonable use of force."
When is a Blood Sample Requested?
Blood samples are usually requested when you were injured in an accident that gave rise to the arrest or when you refuse to give a breath sample. Charges can also be based on blood tests done by the hospital as part of the treatment for your injuries.
So What Do I Do?
Whether or not the State is able to get a blood sample that shows intoxication, you can still be charged with a DUI. As such, you are still facing serious consequences and should get a lawyer. 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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