- New Jersey Supreme Court decided the case of State v. Zalcberg
- July 10, 2018
On March 27, 2018, the New Jersey Supreme Court decided the case of State v. Zalcberg. In Zalcberg, the Supreme Court reversed the Appellate Division and trial court's suppression of a warrantless blood draw taken from a motor vehicle driver who was involved in a serious motor vehicle accident and suspected of alcohol intoxication. Succinctly, the New Jersey Supreme Court found that based on the totality of circumstances, which involved a complicated scene and a lack of any formal procedure within the police department for securing a telephonic warrant, and giving “substantial weight” to the potential dissipation of alcohol in the suspect's system, a sufficiently objective exigency existed to justify the warrantless blood draw. Two justices also filed a dissent, arguing that a sufficient exigency did not exist under the circumstances. Both the majority opinion and the dissent discussed the SCOTUS decision Missouri v. McNeely, wherein the US Supreme Court held that the dissipation of alcohol alone was not sufficient to create an exigency sufficient to justify a warrantless blood draw.
The majority's holding in Zalcberg was:
We hold that the facts of this case, in totality, indicate an objective exigency: a fatal accident with multiple serious injuries, the absence of an established telephonic warrant system, and the myriad duties with which the police officers present were tasked. We also afford "substantial weight" to the "potential dissipation of" the alcohol in defendant's blood. Adkins, 221 N.J. at 303. Therefore, we hold that the warrantless blood draw did not violate defendant's constitutional rights in this case.
The dissent's position in Zalcberg was that the majority did not properly apply the holding of McNeely but instead essentially made an improper post-hoc determination that exigency factors were present to justify the warrantless blood draw. The dissent concluded:
In conclusion, the majority has not recited fully the facts in this case. The majority moreover has not applied the principles set forth in McNeely, as required by Adkins. Warrantless searches are presumptively invalid. State v. Edmonds, 211 N.J. 117, 130 (2012). The State had the burden of proving that exigent circumstances made it impracticable to obtain a warrant for a blood draw. See McNeely, 569 U.S. at 160. The State failed to meet that burden. The trial court found that the State did not establish that in the two hours and forty-five minutes available, it was impracticable to attempt to secure a telephonic warrant. The Appellate Division affirmed because the trial court's factfindings are supported by sufficient credible evidence in the record. In substituting its own factfindings for those of the trial court, the majority has not adhered to the deferential standard of review that should guide this Court in reviewing a suppression order.
At it’s most narrow, Zalcberg simply adds to the body of case law wherein a court found that certain other factors, in addition to the dissipation of alcohol in a suspect’s system, created a sufficient exigency to justify a warrantless blood draw. More generally, Zalcberg has some application in scenarios where there is a warrantless search and an exigency is asserted that is at least partially based on a “complicated scene” and/or the lack of any formal procedure for securing a telephonic warrant. The holding of Zalcberg also reinforces that the test for exigency is an objective test and thus, the exigency factors justifying a warrantless search to a court need not be the actual factors considered by the officers on scene at the time a decision is made to procure a warrantless blood draw. The Court in Zalcberg found that a sufficient “objective” exigency existed despite the fact that the officers involved in the incident did not seek a search warrant merely based they mistakenly believed, relying on a pre-McNeely understanding of the law, that the dissipation of alcohol created a “per-se” exigency which relieved them of any requirement to secure a warrant.