You’ve had a few beers with friends or a couple of cocktails with dinner and, on the way home, you get pulled over for a broken tail light or a minor traffic violation. You weren’t driving erratically and weren’t giving any visible signs that you were impaired. Can the police officer require that you submit to a blood alcohol test? Are there any restrictions on the officer’s discretion to order a BAC test?
Under current law in New Jersey (which has changed in the last few years), one of two things is required before you can draw someone’s blood you must either have knowing consent, or you must have a warrant. Drawing your blood is considered under the law as an invasion of your privacy, so it can’t be done without consent or a warrant.
It’s pretty common for a police officer to ask if you will submit to a blood alcohol test…and it’s your right to refuse to take the test. The simple refusal to take the test is not evidence of guilt. Nonetheless, you don’t want to refuse, as you’ll face an automatic suspension of your license. A better strategy is to submit to the test and try to challenge the reliability of the readings.
If you don’t consent, or if you are unable to consent because you are unconscious, the officer cannot make you undergo a BAC test absent a warrant. The officer can obtain what is known as a “telephonic warrant,” where the officer calls a judge, describes the situation and obtains a verbal warrant over the phone.
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