May 17

DWI Warrant For Blood Retroactive


In 2013 the Supreme Court of the United States held that a warrant is required to draw blood in DWI cases. Missouri v. McNeely. In State v. Atkins, the New Jersey Supreme Court held that, in light of McNeely, that the warrant requirement was retroactive to cases pending after McNeely was decided. In 2010 police arrested Timothy Atkins on suspicion of DWI after a single car accident. The poice obtained his blood alcohol resuts from a simple draw of blood at the hospital without having first obtained a warrant or consent. McNeely moved to suppress his blood results because of no warrant. The lower court granted the motion, but the Appellate Division reversed the suppression ruling that the police relied on pre-McNeely law which permitted the warrantless blood draw based on the exigency inherent in the natural dissipation of blood alcohol. But the New Jersey Supreme Court held, pursuant to State v. Wessells, that a new rule of law established for the conduct of criminal prosecutions, must apply retroactively for all cases not yet adjudicated. Here again, counsel must be proactive in defending a client especially when there is a new change in law.

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