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Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Sunday, November 27, 2016

Consent is not valid if suspect is intoxicated or injured- Under influence consent not valid

Consent is not valid if suspect is intoxicated or injured- Under influence consent not valid

For informed consent to be valid police have to advise someone either that they are under arrest for a specific charge or that they are investigating a particular offense. See State v. A.G.D.178 N.J. 56 (2003).

      According to the Supreme Court in A.G.D.:

“Our approach here is analogous to the approach taken in respect of New Jersey's administration of the so-called "target doctrine." Under the general contours of that doctrine, an individual being questioned before a grand jury who is also the target of the investigation must be advised of that fact in addition to receiving Miranda warnings. State v. Vinegra, 73 N.J. 484, 490, 376 A.2d 150 (1977). Knowing one's "target" status is essential "in order for the witness to intelligently determine whether he/she wishes to exercise [his or her] constitutional rights[.]" 31 New Jersey Practice, Criminal Practice and Procedure § 10.35 at 426-27 (Leonard N. Arnold) (2002). As with the rule announced today, "[the common law privilege against self-incrimination in New Jersey as expounded in our target doctrine seems to afford greater protection than that given by the Fifth Amendment." Vinegra, supra, 73 N.J. at 490, 376 A.2d 150.(Emphasis added).

         This brief is submitted in support of defendant’s motion to suppress evidence sample evidence obtained without a warrant.

Legal Argument
       It is defendant’s position that the non voluntary of a urine sample for non-medical prosecutorial purposes, without consent or a warrant violated the 4th Amendment of The Constitution and was contrary to Missouri v. McNeely, 133 S. Ct. 1552 (2013).

The United States Supreme Court recently held that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. Missouri v. McNeely, 133 S. Ct. 1552 (2013). The Court further held that when officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. Id. at 1555. Missouri v. McNeely applies to Mr. Steven’s case, and the exclusionary rule should apply.
Missouri v. McNeely reevaluated the almost 50 year old decision in Schmerber v. California, 384 U.S. 757 (1966), which squarely addressed the question of “whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S. Ct. at 1556. The U.S. Supreme Court concluded that the natural metabolization of alcohol does not create a per se exigency, and that exigency must be determined on a case by case basis, based upon the totality of the circumstances. Id. In so holding, the McNeely Court observed that the principle that a warrantless search of the person is reasonable only if it falls within a recognized exception to the warrant requirement applies to the taking of blood samples, which “involve[s] a compelled physical intrusion beneath [a person’s] skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s ‘most personal and deep-rooted expectations of privacy.’” McNeely, 133 S.Ct. at 1558 (internal citations omitted). See also Handbook “ Handing Drug, DWI & Serious Cases” NJ ICLE by Vercammen & Menzel 2015
The Court acknowledged the fact that once the alcohol is fully absorbed, the human body’s natural metabolic process causes the alcohol level in a person’s blood to dissipate and to continue to decline until the alcohol is eliminated and, therefore, a significant delay in testing will negatively impact the probative value of the results. McNeely, 133 S.Ct. at 1560. Nevertheless, the Supreme Court said:
But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State . . . . In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v.  U.S., 225 U.S. 451, 456 (1948) (“We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative”). We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect.

McNeely, 133 S.Ct. at 1561 (some internal citations omitted) (emphasis added). Thus, the Supreme Court rejected the notion that the evanescent nature of alcohol in and of itself creates an exigency justifying a warrantless drawing of a suspect’s blood.  Rather, the McNeely Court mandated the requirement of a warrant for obtaining a blood sample and reaffirmed that each case be decided based upon its own facts under the totality of the circumstances. The McNeely Court continued:
Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.

McNeely, 133 S. Ct. at 1561 (emphasis added).
It is respectfully submitted that facts of the case at bar present precisely the type of scenario under which McNeely mandates the Court find “no plausible justification for an exception to the warrant requirement.” Id. 
In all that time, no officer made any effort to telephone in for a warrant. Judges are available 24 hours a day. Judges answer calls for Domestic Violence cases every night within seconds of the call.
The McNeely Court further observed that the per se rule urged by the State failed to account for technological advances in the 47 years since Schmerber was decided. More specifically, the Court noted the 1977 amendment to the Federal Rules of Criminal Procedure, which allowed for warrants to issue based upon testimony communicated via telephone. The Court also took note of innovations by individual states, which allowed for search warrant applications to be made by telephonic, radio or other electronic communication such as e-mail and video conferencing. Ironically, in a footnote to this observation, the U.S. Supreme Court cited as an example of such State innovations, New Jersey Rule 3:5-3(b) which allows a Superior Court Judge to issue a search warrant based upon testimony from an applicant who is not physically present, but who may communicate sworn testimony via telephone, radio or other electronic communications.
Thus, the Supreme Court reasoned that as means of communication have drastically changed since Schmerber was decided in 1966, so too have the means by which a law enforcement officer may apply for a warrant drastically changed. With the advent of greater methods of electronic communications including cellular phones, from which we can make phone calls as well as send text and e-mail messages, we have also gained the ability to communicate immediately with nearly anyone in any location from almost anywhere.
Moreover, the fact that defendant was “injured” in an accident is not a per se emergent circumstance, since every time a driver is injured in an accident it would divest the individual of his constitutional rights. Rather the analysis set forth in McNeely, is whether the police were under circumstances that prevented them from obtaining a warrant. Thus, under McNeely, the question of whether or not exigent circumstances, or special facts, are present sufficient to justify a warrantless blood draw must be analyzed on a case-by-case basis based upon the totality of the circumstances.
With regard to the automobile exception to the warrant requirement, the Court stated:
[T]he fact that people are “accorded less privacy in . . . automobiles because of th[e] compelling governmental need for regulation,” California v. Carney, 471 U. S. 386, 392 (1985), does not diminish a motorist’s privacy interest in preventing an agent of the government from piercing his skin. As to the nature of a blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions we have found unreasonable . . . We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.

McNeely, 133 S.Ct. at 1564 (some internal citations omitted, emphasis added)
In the present instance, the state has not and indeed cannot, articulate any special circumstance which prohibited any one of the police officers on scene from using a police radio, cell phone (work or personal), hospital phone, police station phone, fax machine or computer to obtain a telephonic or written warrant.
Despite the availability of technology to do so, as well as the abundance of time between calling and waiting for EMS to arrive, and the drive to the hospital, police had ample opportunity to obtain a warrant to seize his urine. Further, the fact that the driver was injured, alone, does not create an emergent circumstance that would enable officers to bypass the warrant requirement. The driver was not dying; in fact, The driver was stabilized, conscious, and responsive.  Additionally, police behavior did not indicate that they believed there to be exigent circumstances, prohibiting the application for search warrant.  As such, the officers should have obtained a warrant to extract a sample of his urine where they did not obtain valid consent.
The US Supreme Court recently rejected DWI blood test without warrant,   Birchfield v. North Dakota  ___ S. Ct. ___ (2016) No. 14-1468.

1. The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. 
Blood tests “require piercing the skin” and extract a part of the subject’s body, Skinner, supra, at 625, and thus are significantly more intrusive than blowing into a tube. A blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. That prospect could cause anxiety for the person tested.

      However, even if the defendant was lawfully detained, the State must  have the evidence that Defendant provided a (1) knowing; (2) voluntary; (3) informed, consent to a search.  See State v. Johnson, 68 N.J. 349, 359 (1975) ( “To be voluntary the consent must be "unequivocal and specific" and "freely and intelligently given." The burden of proof is on the State to establish by clear and positive testimony that the consent was so given. 44 N.J. at 352 (citations omitted); see also State v. Rice, 115 N.J. Super. 128, 131 (App. Div. 1971); State v. Guadiosi, 97 N.J. Super. 565, 571-72 (App. Div. 1967); State v. Price, 108 N.J. Super. 272, 282 (Law Div. 1970); Schenckloth v. Bustamonte, 412 U.S. 218 (1973);  U.S. v. Hurtado, 905 F.2d 74 (5th Cir. 1990);  A waiver, to be enforceable, must not only be voluntary but also knowing and intelligent.” People v. Seaberg, 74 NY 2d 1, at 11 (1989). The New Jersey constitution places a heavier burden on the State of establishing that consent was freely and knowingly given. State v. Bindhammer, 44 N.J. 372, 380 (1965). 

         The hospitals often administer pain-relieving medications to injured persons. Someone administered morphine or other meds at the hospital does not have mental state to consent to sign legal contracts.
     The  consent must be, "clear, express, and unequivocal."  State v. Sugar, 100 N.J. 214 (1985) appeal after remand, 108 N.J. 151 (1985).  Additionally, Art. I, par. 7 of the New Jersey Constitution of 1947 require the State to show that Defendant knew that he had a right to refuse to consent to the search. State v. Johnson, 68 N.J. 349 (1975).  See also State v. Sugar, 100 N.J. 214 (1985).  Even if Defendant allegedly gave oral consent to search, The driver did so in an inherently coercive atmosphere such that the driver could not have freely refused consent.  See e.g. State v. Allen, 254 N.J. Super. 62 (App. Div. 1992); State v. Abreu, 257 N.J.Super. 549 (App. Div. 1992) (consent invalid if police conveyed "message" that compliance is required). 
The State bears the burden of proof by clear and convincing evidence. In In re Seaman, 133 N.J. 67, 74 (1993), the Supreme Court explained what clear and convincing means:
"Clear-and-convincing evidence is that which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the precise facts in issue" (internal quotation marks and brackets omitted).
Thus, the State "has the burden of demonstrating knowledge on the part of the person involved that he had a choice in the matter." Ibid; see also State v. Carty, 170 N.J. at 639.  The State must prove that consent to a warrantless search was "unequivocal, voluntary, knowing and intelligent." Sugar, 108 N.J. 151, 156 (1987).  The State must "prove voluntariness by clear and positive testimony." State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000).
Furthermore, under civil contract law, where a person is, “so excessively drunk that he was utterly deprived of the use of reason[,]” he should be “permitted to defend himself, in a court of law,” against the contract he is alleged to have entered into. Burroughs v. Richman, 13 N.J.L. 233, 238 (Sup. Ct. 1832). While his alleged intoxication does not excuse the offense, itself, it does account for his state of mind at the time he agreed to sign away his rights. See id. And whether that person will later face civil or criminal suit does not ultimately bear on how his state of mind at the point of intoxication affected his decision-making ability. When signing away rights, the courts must look to whether the person signing was non compos mentis; and if he is deemed to have been, then the signature cannot constitute valid consent. See id. At 236-37.
In Burroughs v. Richman, the original Supreme Court held that a defendant should be able to prove that he was so incapacitated that he could not have understood that he was entering into a contract. 13 N.J.L. at 238-39. The court remanded the case saying, “if it appeared satisfactorily, that the defendant was so absolutely drunk, as to be deprived of the use of his understanding, the defense should have availed him.” Id. The same reasoning must apply here. While intoxication cannot be a defense to Defendant’s alleged offense, it must be a factor in the determination of whether the driver voluntarily consented to a urine draw.
In criminal code, Title 2C, the legislature has made clear that incapacitation and/or intoxication negates consent as a matter of law. See e.g. N.J.S.A. 2C:14-2(a)(7) Aggravated Sexual Assault Victim (victim mentally / physically incapacitated).[1]
This record hardly establishes the requisite clear and convincing evidence necessary to overcome a presumably invalid search and seizure. Further,
  If this Court finds that the requisite consent was given (and it was not), how could someone in Defendant’s condition even understand what was being told to his and what right the driver was waiving.  If the police reports are accepted, certainly no court under prevailing statutory and case law could conclude that Defendant was in any condition to consent to, for example entering into a contract, executing a will or to sexual activity. Id.   The officer, himself, without taking a breath sample, believed Defendant to be intoxicated enough so as to issue his a DWI without substantiating his belief.  In the hospital, police officers and medical staff had full knowledge that the driver, was injured, and restrained in a neck brace, yet they presented him with the consent form that they had filled out for her. The driver then signed without fully comprehending his actions.
Consent must be voluntary pursuant to the Fourth Amendment of the United States Constitution. See Schneckloth v. Bustamonte, 412 U.S. 218, 224 (1973).  Courts have held consistently over the years that persons who are so incapacitated that they are unable to understand the gravity of their actions are deemed non compos mentis for the purpose of entering contracts or providing consent. See id. (“Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements -- even those made under brutal treatment -- are 'voluntary' in the sense of representing a choice of alternatives.”).  The facts in the record clearly indicate that Defendant was non compos mentis for the purposes of providing his consent to a urine draw. For that reason, despite his signing the document placed in front of  his consent was not knowing or voluntary and, therefore, it cannot stand.


It is the most basic tenet of Fourth Amendment jurisprudence that in order to lawfully search and seize evidence from a defendant’s person, an officer must obtain valid consent or a warrant. See generally Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961); Georgia v. Randolph, 547 U.S. 103 (2006). Without such a valid consent or warrant, the search is unlawful and the seizure is suppressible. In instances of taking blood samples, the Supreme Court has held that the dissipation of alcohol in the bloodstream is not a per se exigency so as to circumvent the warrant requirement. Missouri v. McNeely, 133 S. Ct. 1552, 1556 (2013). Such an intrusion into the body to retrieve the body’s contents requires a warrant if proper consent is not obtained. Id. at 1557-68. New Jersey courts recognized the decision in McNeely in State v. Adkins, 433 N.J. Super. 479, 484 (App.Div. 2013), and will apply the new standard to cases going forward.

In Rochin v. California, 342 U.S. 165, 172-73 (1952), the Supreme Court held that it was a violation of due process for police officers to enter the defendant’s home and, without a warrant, forcibly pump his stomach against his will to uncover illegal drugs used to later convict him. That type of behavior, the Court said, shocks the conscious. Id. And while the “shocks the conscious” standard has since been abandoned in these cases, as discussed in Lester v. Chicago, 830 F.2d 706, 710-12 (7th Cir. 1987), the holding remains the same, as entering an individual’s body without his consent to withdraw the contents would be an unreasonable search and seizure violative of the Fourth Amendment.

In State v. Ravotto, 169 N.J. 227, 252 (2001), the New Jersey Supreme Court held that where the defendant did not consent and the police did not obtain a court order to extract a blood sample from him, that seizure was a violation of the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures. As such, the evidence was suppressed. Id.

Here, Defendant may be too physically incapacitated to provide consent.   The driver had injuries from the car accident.  If the police are believed the driver Defendant was also intoxicated, they would not let the person drive further because of incapacity.  As a result, the form was filled out by an agent of law enforcement, with all of Defendant’s information, and then presented in front of his to sign. Because these circumstances indicate his lack of consent, the police had to have obtained a warrant to take his urine.  They did not.  As such, the evidence unlawfully obtained as a result of the nonconsensual warrantless search must be suppressed.

Remember that in order for any consent or waiver it has to be done a. knowingly b. voluntarily c. intelligently - so police have to tell you what you are under investigation for or else your waiver / consent is no good.  This is usually the case where you think you are under arrest for a 4:50 only then all of a sudden you are being charged with endangering/ assault by auto / homicide. See State in the interest of A.G.D., 178 N.J. 56 (2003). 

The Court held in A.G.D:

“Our approach here is analogous to the approach taken in
respect of New Jersey’s administration of the so-called “target
individual being questioned before a grand jury who is also the
target of the investigation must be advised of that fact in
addition to receiving Miranda warnings. State v. Vinegra, 73
N.J. 484, 490 (1977). Knowing one’s “target” status is
essential “in order for the witness to intelligently determine
whether he/she wishes to exercise [his or her] constitutional
rights[.]” 31 New Jersey Practice, Criminal Practice and
Procedure §10.35 at 426-27 (Leonard N. Arnold) (2002). As with
the rule announced today, “[t]he common law privilege against
self-incrimination in New Jersey as expounded in our target
doctrine seems to afford greater protection than that given by
the Fifth Amendment.” Vinegra, supra, 73 N.J. at 490.”

  Finally, Keep in mind confusion doctrine in the last couple of cases the following occurs at the hospital and not necessarily in this order- client may have honestly believe that he was giving blood or urine for treatment and not to prosecute themselves.

Any response to the police in custody usually violates Miranda unless Mirandized - so therefore the execution of the consent form may be poison fruit if police did not Mirandize the client before signing the consent form.   

“It is clear that the protection of the privilege (against self-incrimination) reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications...” State v. Nece, 206 N.J.Super. 118, 122 (Law Div. 1985), citing Schmerber v. California, 384 U.S. 757.  See also State v. Mason, 164 N.J.Super 1 (App.Div. 1979).

[1] The New Jersey model jury charge states that:

 Mentally defective means that condition in which a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of understanding the nature of (his/her) conduct, including but not limited to, being incapable of proving consent.  A person is mentally defective if, at the time of the sexual activity, the mental disease or defect rendered (him/her) unable to comprehend the distinctively sexual nature of the conduct, or incapable of understanding or exercising the right to refuse to engage in such conduct with another.  It includes both the capacity to understand and the capacity to consent with respect to personal sexual activity. The capacity to consent involves knowing that one’s body is private and is not subject to the physical invasions of another and that one has the right and ability to refuse to engage in sexual activity.  The capacity to understand, which is part of the idea of the capacity to consent, involves the knowledge that the conduct is distinctively sexual.  Here, that knowledge extends only to the physical or physiological aspects of sex; it does not extend to an awareness that sexual acts may be morally right or wrong and have probable serious consequences, such as pregnancy and birth, disease, infirmities, adverse psychological or emotional disorders.
Mentally incapacitated means that condition in which a person is rendered temporarily incapable of understanding or controlling (his/her) conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without (his/her) prior knowledge or consent, or due to any other act committed upon that person which rendered that person incapable of appraising or controlling (his/her) conduct.[1] 
The fourth element that the State must prove beyond a reasonable doubt is that [in this case the police officer asking for consent] knew or should have known that the (name of victim) was [choose appropriate] physically helpless, mentally defective or mentally incapacitated.