Many drivers assume that refusing a breathalyzer in New Jersey removes the state’s best evidence. In practice, refusal often leads directly to a blood draw warrant, and the resulting sample carries its own set of legal and scientific challenges.
When a driver is pulled over on suspicion of driving while intoxicated in New Jersey, the arresting officer will typically request a breath sample using the state’s Alcotest 9510 machine. Under New Jersey’s implied consent law, operating a vehicle on state roads constitutes legal consent to this testing. A refusal does not end the investigation. Officers are prepared to contact a municipal judge by phone to secure a rapid blood draw warrant, after which the driver is transported to a medical facility for a chemical blood test.
Challenging the warrant’s probable cause foundation
A blood draw warrant is not immune from legal challenge. Under the U.S. Supreme Court’s decision in Missouri v. McNeely (2013), the natural dissipation of alcohol in the bloodstream does not automatically create an emergency justifying a warrantless blood draw. Officers must secure a warrant approved by a neutral magistrate, and that warrant must be based on accurate, complete information.
At a pre-trial suppression hearing, defense counsel can obtain the audio recording of the telephonic warrant application and review it for specific weaknesses:
- If the officer described poor field sobriety test performance without disclosing that the testing environment was uneven, poorly lit, or affected by adverse weather conditions, the factual basis for the warrant may be compromised.
- If the driver did not willfully refuse but was physically unable to complete the breath test due to a documented respiratory condition such as asthma or COPD, the underlying premise for the warrant request may be legally insufficient.
A successful suppression of the warrant can exclude the blood test result from evidence entirely.
Auditing the sample’s handling and preservation
Even when a warrant survives constitutional challenge, the blood sample itself can be challenged on scientific and procedural grounds. New Jersey courts require strict adherence to collection and preservation protocols:
- Skin preparation: Medical staff must use a non-alcoholic antiseptic such as chlorhexidine to clean the draw site. Using an isopropyl alcohol swab introduces an external alcohol source that can compromise the integrity of the sample.
- Sample preservation: The collection tube must contain proper concentrations of sodium fluoride (a preservative) and potassium oxalate (an anticoagulant) to prevent clotting and inhibit the in vitro fermentation that can artificially elevate the measured alcohol content.
Errors in either area provide grounds to challenge the reliability of the test result, even if the sample was lawfully obtained.
New Jersey law, including the ongoing legal landscape around the Alcotest 9510, continues to develop through appellate decisions. An experienced New Jersey DWI defense attorney can review both the warrant application and the chain of custody for the blood sample to identify the strongest available challenges before trial.