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Does a blood sample in DUI 39:4-50 case violate your fourth amendment right to privacy?In the world we live in today, we are obsessed with the notion of privacy.  We want everything that we consider private or ours to stay that way, but there are some aspects of the law that require the yielding of this right.  When it comes to a DUI case in which an officer asks for a blood sample, it may violate your privacy right but there are ways to safeguard it, like through a court order.

Does a blood sample violate your right to privacy?

First, if the officer asks for your consent and you give it.  This means that you have the right to say no, and the ability to do so.  There are adverse consequences to saying no, but you do have the option and therefore would be giving consent to the test.  By giving consent the test can’t be considered a violation of privacy.  Unless, your consent wasn’t voluntary. The question becomes whether you the circumstances were so coercive and the officer’s tactics so underhanded that you believed you had no choice. 

Secondly, the request may not be unreasonable.  If an officer believes that you are under the intoxication of alcohol or drugs at the time they pull you over, the best evidence can be your blood sample.  A breath sample only tests for alcohol, and therefore renders breath testing ineffective in testing for drugs.  In some cases this means that in order to prove drug intoxication, the officer needs to collect a sample before it degrades.

In the event of an accident when your condition prevents you from giving a breath sample, the only possible evidence may be your blood.  If you refuse, in my opinion the officer needs to get a court order to force you to give a blood sample.  This is an evolving area of the law, but it is my opinion that you shouldn’t be forced to give a blood sample without a court order.

What does the Fourth Amendment of the Constitution say?

Most of the time when people attack something as an invasion of privacy, they are using the fourth amendment to the United States Constitution as their foundation. The United States Constitution’s Fourth Amendment guarantees “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. When you consider that a blood or urine test is a search for evidence, then constitutional protections must be applied. Both Federal and New Jersey law have recognized that seeking a sample of blood or urine is a “search” as found in our constitution.

The end result is that an Officer seeking to test your blood or urine to determine your sobriety must either have a warrant to get your sample or a valid exception to the warrant requirement. There is plenty of time for an officer to get a court order (Warrant) to “search” your blood.  These protections prevent an officer from simply walk up to your car and search it, he needs a reason first.  In the case of the DUI blood sample, this need to collect evidence of possible drug intoxication is his reason, but he or she should be required to get a court order first; unless, of course, you foolishly give the officer permission to take your sample.

Whenever presented with any form of legal charge it is very important to seek legal counsel, but it is especially important in DUI cases where the outcome can affect your life for years to come.

Free Resources for you

If you are charged with a DUI you need to know your options before going to court.  On this page you will see an offer for my books, click the link, put your name and contact information and we will give you these books free:

  1. Arrested for Drunk Driving?  Learn how to Beat the Odds – Here I discuss defense strategies, and common mistakes I see other attorneys make in defending these complicated cases.  I also list for your question you should ask any attorney that you interview for your defense.
  2. Why Pleading Guilty to Your New Jersey Traffic Ticket is NOT an Option – Here I discuss court process and violations, including DUI’s.  There lots of case examples here.
  3. An Immigrant’s Guide to Municipal Court.  This discusses specifically what you will encounter in  Municipal Court if you aren’t a U.S. citizen and how it can result in removal proceedings in Immigration Court.  I define important terms and guide you through the Municipal Court and Immigration Court process.

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