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Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.
Latest posts by Rick DeMichele (see all)
Warrantless blood draw leads to DWI Dismissal
Our goal in every criminal or municipal defense case is to put our client in the best possible position given the facts of his or her case.
In that spirit, we were recently able to obtain a dismissal of a DWI charge against our client in Pennsville Township (Salem County) Municipal Court based upon key flaws in state’s case.
Regular readers of our blog will know you should never just plead guilty to a DWI and, in selecting a NJ DWI attorney, past results and experience are important.
Our recent result in the Pennsville Township Municipal Court is a great reminder that not every DWI charge ends up as a conviction!
In our case, the client was injured in an intersectional collision in Pennsville Township. When the police arrived on the scene, they noticed that our client was bleeding and had other injuries. Because of her injuries, our client was taken to the hospital where the police asked her to consent to a blood draw for the purpose of determining her blood alcohol content.
We requested the discovery from the state. As part of our review of the discovery, we examined the consent that our client signed the hospital. While our client signed a consent form to draw her blood, she was never informed that she had a right to refuse the consent and she was never told that even if she did give consent they can be revoked at any time prior to the taking of her blood. The consent form she signed was silent with regard to these two very important elements of informed consent.
We then spoke to the prosecutor about what we believed was a fatal defect in the consent form that was signed by our client. Ultimately, we filed a motion to suppress the results of the blood draw. While the motion was pending prosecutor informed us that DWI charges against our client would be dismissed.
The Fourth Amendment provides, in relevant part that,
“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”That principal applies when a law enforcement officer attempts to obtain a blood sample for use as evidence in a criminal investigation. This is particularly true when a law enforcement officer attempts to obtain a blood sample for use as evidence in DWI investigation. Consent to a search is an exception to the rule requiring a warrant. However, consent is a valid exception to the warrant requirement only if it meets a high threshold. In New Jersey, validity of the consent to search is determined by a two-part analysis:
First, it must be determined if the consent to search was voluntary.
Second, it must be determined that the person had knowledge of his/her right to refuse consent and whether that right to withhold consent was knowingly waived.
In our case, we were able to convince the prosecutor that our client did not know she had the right to withhold consent and her waiver of that right was not knowingly. With an imminent suppression of the only evidence that our client was allegedly intoxicated, the case was properly dismissed. If you or a loved one needs strong representation in Pennsville Township Municipal Court or any other municipal court in Salem County or anywhere in New Jersey, do not hesitate to contact the municipal court defense lawyers at DeMichele & DeMichele today. We are here to defend the charges against you. Contact us now for your confidential and free initial consultation. You can also reach us by telephone (856) 546-1350. Don’t just plead guilty and risk your driving privilege or driving record. ____ The outcome of every DWI case is very fact specific. Your particular case results will vary depending on a wide range of legal issues and other factors. The facts of your case may not apply to or relate to the results of the case described above. ____The following two tabs change content below.
Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.
Latest posts by Rick DeMichele (see all)
