(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued May 1, 2001 -- Decided July 26, 2001
Verniero, J., writing for a majority of the Court.
The issue in this appeal is whether, under the totality of the circumstances, the police used unreasonable
force in obtaining the defendant's blood sample to determine whether he was intoxicated.
Defendant consumed alcohol at a friend's house in the early morning hours of January 18, 1997. A police
officer discovered the defendant about 6:00 a.m. lying inside his car. Defendant had overturned the car in a one-car
accident, and it was entangled in a chain-link fence. The officer asked the defendant whether he was all right and
whether anyone else was in the car. Defendant responded that he was all right and that he was alone in the car.
When the ambulance arrived, however, defendant insisted that they “hurry up” because “there's three of us in here.”
When defendant came out of the car, he explained that he was joking about the presence of others in the car.
Another officer arrived at the accident scene, and both officers smelled a strong odor of alcohol on
defendant's breath. Although he had no visible injuries and refused medical treatment, police and other emergency
workers forced defendant onto a backboard to transport him to a nearby hospital. Defendant resisted vigorously.
The officers placed defendant under arrest for driving while intoxicated, after which an officer accompanied
defendant to the hospital for the purpose of obtaining a blood sample.
At the hospital, defendant continued his resistence and tried to punch an attending physician who was
attempting to take his blood pressure. The officer requested that medical personnel take a blood sample from
defendant to test for drug and alcohol content. No warrant was obtained authorizing the taking of blood. Before the
hospital could take the blood, a police blood kit had to be delivered from police headquarters, which took an hour.
Defendant, who had been placed in restraints, was held down by two officers as the nurse obtained the sample.
Defendant screamed and struggled to free himself. He purportedly said repeatedly that he was afraid of needles and
would give a Breathalyzer sample if they would refrain from taking his blood. At no time was the defendant offered
a Breathalyzer test as an alternative. The nurse took eight vials of blood, four for the police and four for the
hospital's diagnostic uses. The record is not clear as to whether the hospital would have extracted the blood absent
police involvement. Defendant was kept restrained for about six hours, and then released. He received no other
treatment at the hospital.
Defendant was charged with driving while intoxicated. He moved before the municipal court to suppress
the results of the blood test, which revealed a blood alcohol content nearly three times the legal limit. The court
denied the motion, holding that the police were under no obligation to give him the option of taking a Breathalyzer
test and that no search warrant was required to take the blood sample because of the evanescent nature of the
evidence. The court found nothing improper about the police conduct in taking the blood sample.
Defendant entered a conditional plea of guilty and appealed the denial of his suppression motion to the
Law Division. The Law Division reversed the municipal court, holding that the police should have obtained a
telephonic warrant. In a published opinion, the Appellate Division reversed the Law Division's determination,
333 N.J. Super. 247, reasoning from federal and State court opinions that 1) a driver arrested for driving under the
influence has no legal right to refuse chemical testing, 2) the police are not required to obtain consent, and 3) the
driver may be restrained in order to take a blood sample. The court also held that the police officers were not
required to seek a telephonic search warrant simply because there was a time lag at the hospital while awaiting the
blood kit.
HELD: Applying the Fourth Amendment of the Constitution of the United States and Article I, paragraph 7 of the
New Jersey Constitution, the force used by the police to extract defendant's blood was unreasonable under the
totality of the circumstances.
1. The State's taking of blood from a suspect constitutes a search. Under the State and federal constitutions, a
search must be reasonable, measured in objective terms by examining the totality of the circumstances. Police must
obtain a warrant to conduct the search unless it falls under one of the recognized exceptions to the warrant
requirement. With or without a warrant, police may not use unreasonable force to perform a search of a person. In
assessing unreasonable force claims, courts consider whether the officers' actions are objectively reasonable in light
of the facts and circumstances, without regard to their underlying intent or motivation. Pursuant to Graham v.
Connor,
490 U.S. 386 (1989), courts employ a balancing test that considers facts and circumstances such as the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others,
and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. (pp. 8-10).
2. In Schmerber v. California,
384 U.S. 757 (1966), the United States Supreme Court held that police, who had not
used force, had been justified in requiring a defendant to submit to a blood test to determine intoxication because of
the evanescent property of alcohol, the test's accuracy and its minimal intrusiveness. However, the Schmerber
Court suggested that compulsory blood tests may not be permissible when a defendant objects on the grounds of
fear, concern for health, or religious scruple and might prefer some other means of testing such as the Breathalyzer
test. Opinions of the Superior Court of New Jersey, Appellate Division, have implied that, at some level of force or
coercion, police conduct in pursuit of a blood sample is impermissible. (pp. 10-17).
3. Pursuant to Graham, the Court employs a balancing test that considers all relevant facts and circumstances,
including the defendant's reaction to law enforcement officials, the nature of the offense under investigation by
police, and the existence of other proofs apart from blood evidence. Here, the Court balances defendant's manifest
fear of needles, his violent reaction to the bodily intrusion engendered by the search, and his willingness to take a
Breathalyzer test against the State's interest in prosecuting the defendant on a quasi-criminal charge in respect of
which there existed considerable proofs apart from the blood evidence. In striking the balance, the Court finds that
the forced extraction of blood in this instance offended the State and federal constitutions. (pp. 17-22).
4. The Court rejects the State's argument that it should sustain the results of the blood test as the fruits of the
search because the police ultimately would have obtained the test results from the hospital itself. The Court could
not conclude from the record that the hospital staff would have taken a blood test absent the police request. Even if
the hospital had required its own blood sample for diagnostic purposes, once the State assisted in the forced taking
of those samples it could no longer acquire them under the independent source doctrine. (pp. 22-26).
5. The Court declines to remand the matter to afford the State the opportunity to clarify or develop the record on the
availability of the Breathalyzer and other issues. Such a remand would not result in an alteration of this disposition
in light of the uncontested facts. (pp. 26-30).
6. The police had probable cause to arrest the defendant and, due to exigency, they were not required to obtain a
search warrant authorizing the blood sample. Moreover, the police acted properly in transporting defendant to a
hospital and seeking the blood test in a medically reasonable manner. The Court concludes, however, that the
police used unreasonable force to acquire the blood sample from the defendant against whom they already had
considerable evidence. On that basis, the fruits of the search cannot be sustained. (pp. 30-34).
The judgment of the Appellate Division is REVERSED. On REMAND to the municipal court, the
evidence of defendant's blood alcohol content will be suppressed and defendant's not-guilty plea will be reinstated.
JUSTICE LaVECCHIA, dissenting, disagrees with the Court's reliance on the State Constitution and its
interpretation of the opinions of the United States Supreme Court, is of the view that the record is inadequate to
assess properly the totality of circumstances, and would remand the matter for a full hearing.
JUSTICES STEIN, COLEMAN, LONG and ZAZZALI join in JUSTICE VERNIERO's opinion. JUSTICE
LaVECCHIA filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ joins.
SUPREME COURT OF NEW JERSEY
A-
45 September Term 2000
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD A. RAVOTTO,
Defendant-Appellant.
Argued May 1, 2001 -- Decided July 26, 2001
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
333 N.J. Super. 247 (2000).
Ronald K. Chen argued the cause for
appellant (Mr. Chen, Robert J. Bates and
J.C. Salyer, Staff Attorney, American Civil
Liberties Union of New Jersey Foundation,
attorneys; Mr. Chen, Mr. Bates and Mr.
Salyer, on the briefs).
Susan W. Sciacca, Deputy First Assistant
Prosecutor, argued the cause for respondent
(William H. Schmidt, Bergen County
Prosecutor, attorney).
Linda K. Danielson, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (John J. Farmer, Jr.,
Attorney General, attorney).
The opinion of the Court was delivered by
VERNIERO, J.
This case implicates defendant's right to be free of
unreasonable searches under the federal and State Constitutions.
The police arrested defendant for driving while intoxicated.
Thereafter, they transported defendant to a hospital where an
officer requested that medical personnel take samples of his
blood to test for drug and alcohol content. Over defendant's
strenuous objections, his legs and his left arm were strapped to
a table, and several persons, including two police officers, held
him down as a nurse drew eight vials of blood. The Law Division
disallowed the use of that evidence on constitutional grounds.
On leave to appeal granted to the State, the Appellate Division
reversed, finding no constitutional violation. We disagree. We
hold that under the totality of the circumstances the police used
unreasonable force in obtaining defendant's blood sample. In
view of that holding, we conclude that the Law Division properly
suppressed defendant's blood alcohol content level as evidence of
intoxication.
Another officer, Edmond Sullivan, arrived at the scene. Both officers smelled a strong odor of alcohol on defendant's breath. Although he appeared disheveled, defendant had no visible injuries. As a precaution, the police tried to get defendant onto a backboard so he could be taken to a hospital in the ambulance. Defendant refused medical treatment, insisting that he was not injured. Believing such treatment was in defendant's best interests, the police and other emergency workers forced defendant onto the backboard and prepared to transport him to nearby Englewood Hospital. Defendant vigorously resisted those efforts.
Suspecting that defendant was under the influence of alcohol, Officer Kochis instructed Officer Sullivan to accompany defendant to the hospital and obtain a blood sample from him. Before departing the scene, the police placed defendant under arrest for driving while intoxicated. Defendant continued to struggle against the restraints of the backboard on the way to the hospital. Once there, defendant tried to punch an attending physician who attempted to take his blood pressure.
Shortly after arriving at the hospital, Officer Sullivan requested that medical personnel take a blood sample from defendant to test for drug and alcohol content. The officer did not obtain a warrant authorizing the taking of the sample. Before the hospital could take the blood, a police blood kit had to be delivered from police headquarters. Officer Sullivan waited an hour to receive the blood kit, then provided it to a registered nurse who took the sample. At no time did the officer offer defendant a “Breathalyzer” test as an alternative method of testing for alcohol content levels.
To obtain defendant's blood, Officer Sullivan and hospital personnel had to restrain defendant. Defendant's legs and his left arm were strapped to a table, and several persons, including Officer Sullivan and the officer who delivered the blood kit, held him down. The record is undisputed that defendant screamed and struggled to free himself as the nurse drew his blood. Defendant later testified that he had said repeatedly, “I'm afraid of needles. I have no problem giving you a Breathalyzer sample if that's what you want but do not take my blood.” He claimed that a childhood accident had made him afraid of needles. Defendant also testified that he had felt as though he were “being raped” as the blood was taken.
The nurse took eight vials of blood, four for use by the police and four for the hospital's diagnostic purposes. The record does not clearly indicate whether the hospital would have extracted defendant's blood absent police involvement. Defendant was kept in restraints for about six hours after the blood samples were taken, and then discharged. Defendant received no other treatment while he was at the hospital.
Defendant was charged with violating N.J.S.A. 39:4-50, which sets forth the penalties for driving while intoxicated. A related measure, New Jersey's “implied consent” statute, provides that drivers licensed in this State shall be deemed to have given their consent to the taking of breath samples “for the purposes of making chemical tests to determine the content of alcohol in [their] blood[.]” N.J.S.A. 39:4-50.2(a). The statute prohibits the police from using force in administering such tests, stating that “[n]o chemical test, provided in this section, or specimen relating thereto, may be made or taken forcibly and against physical resistance thereto by the defendant.” N.J.S.A. 39:4- 50.2(e). A driver's failure to submit to a lawfully requested test results in the loss of driving privileges for an extended period. N.J.S.A. 39:4-50.4a. Although the implied consent statute pertains solely to breath tests and thus is not applicable, State v. Woomer, 196 N.J. Super. 583, 586 (App. Div. 1984), we have described it here to provide a context for our disposition.
Defendant moved before the municipal court to suppress the results of the blood test, which revealed a blood alcohol content of 0.288 percent (nearly three times the legal limit). The court denied defendant's motion, holding that the police were under no obligation to give him the option of taking a Breathalyzer test. The court also concluded that the police did not have to obtain a search warrant to extract the blood because of the evanescent nature of that evidence. The court found nothing improper about the use of force by the police in taking blood from defendant.
Defendant entered a conditional plea of guilty to driving while intoxicated and appealed the denial of his suppression motion to the Law Division. The Law Division reversed the municipal court, holding that the police should have obtained at least a telephonic warrant authorizing the blood sample. The court then entered a not guilty plea on defendant's behalf and remanded the case to the municipal court for trial.
The State moved for leave to appeal before the Appellate Division, which granted the State's motion and reversed the Law Division's determination. State v. Ravotto, 333 N.J. Super. 247 (App. Div. 2000). The Appellate Division noted that the rules established by the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed.2d 908 (1966), permit blood to be taken over the opposition of a suspect in certain instances. Ravotto, supra, 333 N.J. Super. at 254. The panel cited other authority, including State v. Macuk, 57 N.J. 1 (1970), in which this Court held that the defendant's failure to consent to a breath test did not violate the privilege against self-incrimination. Ravotto, supra, 333 N.J. Super. at 254. The panel also cited Woomer, supra, 196 N.J. Super. at 587, in which the Appellate Division approved a police officer's threat of force to obtain a blood sample from an intoxicated driver. Ravotto, supra, 333 N.J. Super. at 255.
Reasoning from those cases, the Appellate Division concluded that “a motor vehicle driver arrested for driving under the influence has no legal right to refuse chemical testing and the police are not required to obtain his or her consent. Further, such a driver can be restrained in order to extract a blood sample.” Id. at 255-56. In view of defendant's accident and the evanescent nature of blood alcohol levels, the panel concluded that the police acted reasonably in transporting defendant to the hospital and ordering a blood test. The court also held that the police officer was not required to seek a telephonic search warrant simply because there was a time lag at the hospital during which he waited for the blood kit. Id. at 256. This Court granted defendant's petition for certification. 165 N.J. 677 (2000). We also granted the motion of the Attorney General for leave to appear as amicus curiae. (For convenience, we will refer to the State and the Attorney General collectively as the State.) We now reverse.
Under the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, a search or an arrest by the police must be reasonable, measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421, 136 L. Ed.2d 347, 354 (1996); State v. Stelzner, 257 N.J. Super. 219, 229 (App. Div.), certif. denied, 130 N.J. 396 (1992). Prior to conducting a search, the police must obtain a warrant from a judicial officer unless the search falls under one of the recognized exceptions to the warrant requirement. Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S. Ct. 1727, 1731, 18 L. Ed.2d 930, 935 (1967); State v. Lund, 119 N.J. 35, 37 (1990).
As we have stated in other settings, “there is a constitutional preference for a warrant, issued by a neutral judicial officer, supported by probable cause.” State v. Cooke, 163 N.J. 657, 670 (2000). Accordingly, the burden is on the government to prove the exceptional nature of the circumstances that exempts it from the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 35, 90 S. Ct. 1969, 1972, 26 L. Ed.2d 409, 413 (1970); State v. Henry, 133 N.J. 104, 110, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed.2d 436 (1993). The State's taking of blood from a suspect constitutes a search within the meaning of the Fourth Amendment. Schmerber, supra, 384 U.S. at 767, 86 S. Ct. at 1834, 16 L. Ed. 2d at 918.
With or without a warrant, the police may not use unreasonable force to perform a search or seizure of a person. Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed.2d 443 (1989). “[T]he 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456. See also Abraham v. Raso, 183 F.3d 279, 289 (3d Cir. 1999) (emphasizing that under Graham, “reasonableness should be assessed in light of the 'totality of the circumstances'”). More specifically, Graham instructs courts to employ a balancing test to determine whether the use of force in a given case is reasonable. The Supreme Court explained that the
proper application [of the balancing test] requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
[Graham, supra, 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455.]
Because the test is an objective one, “[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.” Id. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456.
Against the backdrop of those general principles, Schmerber stands as the seminal case involving the forced extraction of blood from an accused. In Schmerber, the defendant and a companion had been drinking at a California tavern. Schmerber, supra, 384 U.S. at 759, 86 S. Ct. at 1829, 16 L. Ed. 2d at 912. They drove from the establishment around midnight in the defendant's car, which then skidded and struck a tree. Ibid. Both the defendant and his companion were taken to a hospital for treatment of their injuries, after which the defendant was arrested for driving while intoxicated. Id. at 758, 86 S. Ct. at 1829, 16 L. Ed. 2d at 913. The police directed hospital personnel to take a blood sample to test the defendant's blood alcohol level, and the defendant apparently submitted to the test but did not consent to it. Id. at 758-59, 86 S. Ct. at 1829, 16 L. Ed. 2d at 912-13.
The defendant was convicted of drunk driving and appealed on several grounds, including that the blood test violated his rights under the Fourth Amendment. In rejecting the defendant's claims, the Supreme Court framed the issues this way:
[T]he Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring [the defendant] to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.
[Id. at 768, 86 S. Ct. at 1834, 16 L. Ed. 2d at 918.]
Within that analytical framework, the Court concluded that the defendant's intoxicated appearance (his watery, bloodshot eyes and the smell of liquor on his breath) provided probable cause for the arrest. Id. at 768-69, 86 S. Ct. at 1834-35, 16 L. Ed. 2d at 918-19. It also found that because blood alcohol levels diminish rapidly, the police had acted reasonably in taking a sample of the defendant's blood after they had arrested him. Id. at 770-71, 86 S. Ct. at 1835-36, 16 L. Ed. 2d at 920. The Court further found that because it was minimally intrusive and highly accurate, the defendant's blood test was a reasonable measure of blood alcohol content. Id. at 771, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920.
Particularly pertinent to this case, the Court suggested that compulsory blood tests may not be permissible in all circumstances. In that regard, the Court noted that the defendant was “not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the 'Breathalyzer' test [the defendant] refused . . . . We need not decide whether such wishes would have to be respected.” Ibid. The Court concluded that the defendant's blood test, performed by a physician in a hospital environment and without the use of force, had been performed in accordance with medically acceptable practices. Ibid.
The closest analogue to Schmerber in our State jurisprudence is State v. Macuk. In that case, the police arrested the defendant after he drove his car off a road and into a ditch. Macuk, supra, 57 N.J. at 5. The defendant admitted that he had been drinking, and the police noticed that the defendant was swaying as he stood and slurring his speech. Ibid. At the police station, the police asked the defendant for breath samples, and he readily consented. Id. at 6-7. The breath test revealed a blood alcohol content of 0.18 percent, which exceeded the 0.15 percent limit in effect at that time. Id. at 7. The defendant was convicted of drunk driving.
On appeal the defendant argued that before administering the breath test, the police should have informed him of the privilege against self-incrimination as required under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). Macuk, supra, 57 N.J. at 5. The Court rejected that claim. Analyzing New Jersey's implied consent statute, N.J.S.A. 39:4-50.2, and the applicable case law, the Court stated:
There is a clear legal right to require a motor vehicle operator, arrested on probable cause for driving 'under the influence' or 'while impaired,' to submit to a chemical test of bodily substances to determine the amount of alcohol in his blood, or, for that matter, to a physical coordination test. A breath test must, of course, be administered in accordance with the requirements of N.J.S.A. 39:4-50.2 and a blood test in a medically acceptable manner and environment. The latter may be used on any occasion, but will be especially useful where the person is physically unable or has refused to take a breath test. Since such tests, properly undertaken, violate no constitutional safeguard and are permissible as in any other non-testimonial situation and since our statute no longer requires consent in any situation, acquiescence is not legally significant or necessary. There is no legal right or choice to refuse, despite the authorized additional penalty for refusal in the case of the breath test.
The Court concluded that the defendant's breath sample was nontestimonial in character and thus did not violate his Fifth Amendment privilege against self-incrimination. Id. at 14. See also State v. Blair, 45 N.J. 43, 46 (1965) (holding that taking of blood is not covered by Fifth Amendment). Importantly, the Macuk Court did not directly address any Fourth Amendment issues. The Court's language, therefore, suggesting that the acquiescence of an accused is “not legally significant or necessary” when the government extracts blood, is dictum in the context of the Fourth Amendment.
The Appellate Division applied Macuk in State v. Burns, 159 N.J. Super. 539 (App. Div. 1978). In Burns, the police arrested the defendant because of his erratic driving. Id. at 541. The defendant suffered a contusion on his forehead while in police custody, and the police transported him to a hospital for medical treatment. Ibid. The defendant refused to consent to breath and blood tests. Ibid. Because the medical personnel refused to take a blood sample without the defendant's consent, the police took the defendant to a second hospital. Ibid. There, the defendant submitted to, but did not consent to, a blood test. Ibid.
The trial court suppressed the results of the blood test, concluding that it had been obtained contrary to N.J.S.A. 39:4- 50.2, which, as noted, provides that “[n]o chemical test . . . may be made or taken forcibly and against physical resistance thereto by the defendant.” The court reasoned that the defendant was coerced into submission by being taken in handcuffs to the second medical center. Id. at 542. The Appellate Division reversed, concluding that the trial court had misinterpreted the statute. Ibid. The panel held that although the defendant may have been coerced into having his blood drawn, the test itself was not performed forcibly or against physical resistance. Ibid. Citing Macuk, the court also observed that the statute is limited to breath tests. The court concluded that “consent is not required to the taking of a blood sample, but the taking of such sample must be done in a medically acceptable manner and environment . . . .” Id. at 544. The court added, without analysis, that the taking of blood must be performed “without force or violence or the threat of same.” Ibid.
In another case that involved the submission of a drunk- driving suspect to a blood test, the Appellate Division again held that consent is not required to take a blood sample. Woomer, supra, 196 N.J. Super. at 585. In Woomer, the defendant, whose blood alcohol content was 0.225 percent, submitted to a blood test only after the police informed him that they could use force to take a sample. Ibid. The trial court suppressed the result of the test, finding that it had been obtained contrary to the implied consent statute. Ibid. The Appellate Division reversed, affirming that the statute did not apply to blood samples. The panel also stated that the fleeting reference to the use of force in Burns was dictum and, as such, it did not “contemplate facts such as are presented” in the defendant's case. Id. at 587. In dictum of its own, the Woomer court observed:
Indeed, a subject who resists a blood sample can be restrained in a medically acceptable way as could any other uncooperative patient. Here the police properly advised [the defendant] that they were empowered to use force if necessary to secure the blood sample. We disagree with the trial judge's characterization of this advice as a “threat.” It was not a threat at all, but an accurate statement of fact. . . . While we might conceive of circumstances in which threats of force or violence are of such an egregious nature as to implicate a due process claim or negatively affect the integrity of the medical environment, that is not the case before us.
The Woomer court thus held that the police properly may draw blood when they gain a suspect's submission by a mild threat of force. Previous case law permitted such tests in instances when a suspect submitted without the threat or use of force. Burns, supra, 159 N.J. Super. at 544. Implied in both Burns and Woomer, however, is the notion that at some level of force or coercion the police conduct in pursuit of a blood sample is impermissible. Similarly, as noted, the Supreme Court in Schmerber suggested that a suspect who objects to a blood test out of fear or who prefers to give a breath sample might be constitutionally entitled to avoid a blood test. Schmerber,supra,384 U.S. at 771, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920.
We also consider the offense that was under investigation as part of the totality of the circumstances. See Graham, supra, 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455 (explaining that severity of crime at issue is element of test for whether force used by police was reasonable); United States v. Garcia, 450 F. Supp. 1020, 1023 (E.D.N.Y. 1978) (observing that gravity of offense is pertinent to determining whether police action was reasonable). Although the Court does not diminish defendant's suspected offense or in any way condone driving while intoxicated, we note that the charge against defendant is quasi-criminal rather than criminal in nature. State v. Widmaier, 157 N.J. 475, 494 (1999). Moreover, defendant had been in a one-car accident and was not under suspicion for causing the death of or injury to any other person.
Further, we are guided by the fact that courts do not require proof of blood alcohol levels to convict drunk drivers, and that even without the blood test the police had a strong case against defendant. Defendant had flipped his car, and the police had witnessed his erratic behavior, slurred speech, and glassy eyes, and had smelled alcohol on his breath. In addition, defendant's misleading call for help from the car had evidenced his impaired state. See State v. Emery, 27 N.J. 348, 355 (1958) (upholding drunk-driving conviction on direct and circumstantial evidence); State v. Nemesh, 228 N.J. Super. 597 (App. Div. 1988) (concluding that defendant's statements as well as observations of police and videotape of defendant's behavior were sufficient to support conviction for driving while intoxicated), certif. denied, 114 N.J. 473 (1989).
We reiterate that the test of reasonableness is an objective one. Therefore, the fact that the police may have acted with good motives in transporting defendant to the hospital does not “make an objectively unreasonable use of force constitutional.” Graham, supra, 490 U.S. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456. Under Graham, we employ a balancing test to evaluate whether the police conduct impermissibly infringed on defendant's rights, considering all relevant facts and circumstances. Id. at 396, 109 S. Ct. at 1871, 104 L. Ed. 2d at 455. Specifically, we consider defendant's manifest fear of needles, his violent reaction to the bodily intrusion engendered by the search, and his willingness to take a Breathalyzer test. We then weigh those factors against the State's interest in prosecuting defendant on a quasi-criminal charge in respect of which there existed considerable proofs apart from the blood evidence. In striking that balance, we are satisfied that the forced extraction of blood in this instance offended the federal and State Constitutions.
Other courts have reasoned similarly. See, e.g., Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir.) (concluding that when suspect agrees to provide equally useful chemical sample, government's need for evidentiary sample disappears), cert. denied, 525 U.S. 981, 119 S. Ct. 444, 142 L. Ed.2d 399 (1998)); Hammer v. Gross, 932 F.2d 842 (9th Cir.) (en banc) (upholding, in plurality opinion, jury verdict in favor of plaintiff in 42 U.S.C.A. §1983 action involving forced blood sample in part because plaintiff had agreed to breath test), cert. denied, 502 U.S. 980, 112 S. Ct. 582, 116 L. Ed.2d 607 (1991). See also People v. Kraft, 3 Cal. Rptr. 280 (Ct. App. 1970) (holding that forced blood test of defendant exceeded limits of permissible police activity).
Factually, this case resembles State v. Sisler, 683 N.E.2d 106 (Ohio Ct. App. 1995). In Sisler, the police arrested the defendant for driving while intoxicated and brought him to police headquarters. Id. at 108. There, the defendant slipped and injured his head, necessitating a trip to a nearby hospital before he could provide a breath sample for the drunk driving investigation. Ibid. Once at the hospital, the defendant refused to submit to a blood test for the purposes of the police investigation. Ibid. Two police officers, two hospital security officers, a physician, and a nurse held the defendant down so that a sample could be taken. Ibid. After several failed attempts, a blood sample was successfully taken. Ibid.
The trial court admitted the blood sample into evidence, but the appellate court reversed. Ibid. The court held that because the blood sample was taken by a medical professional in a hospital environment, it had been drawn in a medically reasonable manner. Id. at 109. It also held, however, that by the time they sought the blood test, the police had accumulated ample evidence to sustain a conviction against the defendant for driving while intoxicated. Id. at 111. Relying in part on Schmerber, the court concluded that the manner in which the blood was taken by the police violated the defendant's due process rights and, by extension, his Fourth Amendment rights. Id. at 110-11. The court summarized its holding as follows:
It offends a fundamental sense of justice, at least as this court views that concept, that an accused who has been shackled to a hospital bed is held down by six persons while a seventh jabs at his arm with a needle in order to withdraw his blood at the direction of the state's officers. Such conduct is beyond that supportable as a measure necessary for effective law enforcement.
Our review of the record persuades us that the independent source doctrine is not applicable. That the hospital staff would have taken a blood test absent the police request is unclear. The police officers and the nurse who took the blood testified that the blood tests had been required by the police for investigative purposes. The nurse testified that he had taken four vials of blood for police purposes, and then “four additional tubes for hospital purposes,” permitting the reasonable inference that the nurse's primary purpose in taking the sample was to assist the police. To support that inference, defense counsel asked the nurse on cross-examination: “It was your intent to provide . . . a sample for the law enforcement officers and to assist them in their investigation, is that right?” The nurse replied, “[T]hat is correct.”
Even if the hospital had required its own blood samples for diagnostic purposes, once the State assisted in the forced taking of those samples it could no longer acquire them under the independent source doctrine. State v. Sugar, 100 N.J. 214, 237 (1985) (explaining how independent source doctrine allows admission of evidence “'that has been discovered by means wholly independent of any constitutional violation'”) (quoting Williams, supra, 467 U.S. at 443, 104 S. Ct. at 2509, 81 L. Ed. 2d at 387). See also Gilbert v. Leach, 233 N.W.2d 840, 843 (Mich. Ct. App. 1975) (concluding that police officer's request to medical personnel for blood sample from accused constituted state action within context of exclusionary rule), aff'd sub nom. McNitt v. Citco Drilling Co., 245 N.W.2d 18 (Mich. 1976).
In short, we cannot conclude on this record that the hospital staff would have obtained blood samples from an uncooperative but seemingly uninjured driver such as defendant without the request and aid of the police. Stated differently, the record supports a reasonable inference that the medical personnel would have respected defendant's wishes not to have his blood drawn if he had been free of police supervision. Because of the important rights at stake and in view of the fact that the State has the burden of justifying its actions, we must resolve any doubts in favor of defendant.
Further, as noted, the police apparently made no effort to offer defendant a Breathalyzer test in lieu of the blood test. Although the police are not obligated to favor one test over the other, their failure to explore the possibility of administering the Breathalyzer test is a factor to be considered in our overall reasonableness inquiry. The record suggests that there was no Breathalyzer available at Englewood Hospital, although one was available and in working condition at the Edgewater police headquarters a short distance away. That, in turn, suggests that after the police had secured medical treatment for defendant at the hospital, they might have transported him to police headquarters to administer the Breathalyzer. If defendant's medical condition had precluded him from being transported safely to police headquarters, a mobile Breathalyzer unit may have been available from a nearby police station for use at the hospital. The record reveals no attempt by the police to locate such a unit for that purpose. The State's reliance on Schmerber, Macuk, and Woomer is also misplaced. Schmerber did not involve any use of force by the police, nor did the defendant there object to the medical procedure out of fear or offer to submit to an alternate method of testing. Likewise, Macuk is distinguishable because the Macuk Court focused on the privilege against self-incrimination as opposed to the issue presented in this case, namely, whether the search violated defendant's Fourth Amendment rights. Lastly, although Woomer provides a measure of support for the State's position, the Appellate Division in that case stated that at some level of force the police conduct in pursuit of a blood sample would be impermissible.
Such is the case here. We are mindful that the consent of an accused to an otherwise valid search is not strictly required under the teachings of Schmerber, Macuk, and Woomer. In those cases each defendant ultimately submitted to the police conduct. In this case, however, defendant neither consented nor submitted to the drawing of his blood as evidenced by his violent resistance to that action. To determine whether modern precepts of reasonableness have been breached, we consider all relevant factors, including the government's need for the evidence and defendant's interest in avoiding unnecessary bodily intrusions. In so doing, we cannot sustain this search for the reasons already stated.
Today we make explicit . . . and hold that all claims that law enforcement officers have used excessive force _- deadly or not _- in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against . . . physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.
Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of “'the nature and quality of the intrusion on the individual's Fourth Amendment interests'” against the countervailing governmental interests at stake.
[Graham, supra, 490 U.S. at 395-96, 109 S. Ct. at 1871, 104 L. Ed. 2d at 454-55 (footnote omitted) (second emphasis added).]
Because the State's taking of blood in this case constituted a “search” and antecedent “seizure” of defendant's person within the meaning of our search-and-seizure jurisprudence, Graham by its own terms is relevant to our analysis. See Schmerber, supra, 384 U.S. at 767, 86 S. Ct. at 1834, 16 L. Ed. 2d at 918 (concluding that administration of blood tests “plainly constitute searches of 'persons,' and depend antecedently upon seizures of 'persons,' within the meaning of [the Fourth] Amendment”).
We are satisfied that Graham provides the appropriate analytical framework within which to evaluate defendant's constitutional claims. Within that framework, our analysis is informed by the holdings in Schmerber and the other cited cases specifically involving blood extraction. See also Hammer, supra, 932 F. 2d at 844-45 (applying in part Graham balancing test in plurality opinion involving drunk-driving suspect's forced blood sample); State v. Clary, 2 P.3d 1255 (Ariz. Ct. App. 2000) (applying Graham balancing test in cases involving drunk-driving suspect's forced blood sample); People v. Hanna, 567 N.W.2d 12 (Mich. Ct. App. 1997) (same), appeal denied, 587 N.W.2d 637 (Mich. 1998), recons. denied, 595 N.W.2d 827 (Mich. 1999), cert. denied, 528 U.S. 1131, 120 S. Ct. 970, 145 L. Ed.2d 840 (2000); State v. Krause, 484 N.W.2d 347 (Wis. Ct. App.) (same), review denied, 490 N.W.2d 22 (Wis. 1992).
The dissent places undue significance on a brief footnote in Schmerber in which the Supreme Court stated: “We 'cannot see that it should make any difference whether [an arrestee] states unequivocally that he objects or resorts to physical violence in protest or is in such a condition that he is able to protest.'” Schmerber, supra, 384 U.S. at 760 n.4, 86 S. Ct. at 1830 n.4, 16 L. Ed. 2d at 913 n.4 (quoting Breithaupt v. Abram, 352 U.S. 432, 441, 77 S. Ct. 408, 413, 1 L. Ed.2d 448, 454 (1957) (Warren, C.J., dissenting)). That statement must be viewed in context. The footnote indicates the Schmerber Court's willingness to tolerate the use of force to confront a hypothetical suspect's violent protestations, but such force by the police is always subject to limits. In the same footnote, the Court emphasized that “[i]t would be a different case if the police . . . responded to resistance with inappropriate force.” Id. at 760 n.4, 86 S. Ct. at 1830 n.4, 16 L. Ed. 2d at 913 n.4. Moreover, the Schmerber Court expressly stated that its holding pertained only to the fact pattern before it. Id. at 772, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920.
Accordingly, we do not interpret Schmerber to require us to discount or ignore a defendant's violent reaction to blood extraction. Rather, as explained elsewhere, defendant's reaction is but one of a number of facts that comprise the totality of the circumstances in this case. Just as the Schmerber Court made clear that some level of force by the government would be unacceptable, we recognize that, under different circumstances, some level of force by the police to obtain evidence from obstreperous defendants might be acceptable. We do not interpret the dissent as suggesting that any use of force on uncooperative suspects would be constitutionally appropriate. At bottom, our disagreement is over when such force may be applied appropriately.
The dissent also advocates a remand to afford the State the opportunity to clarify or develop the record on the availability of the Breathalyzer as well as in respect of other possible issues. Contrary to the dissent's portrayal, our disposition does not “rel[y] heavily” on defendant's offer to submit to a Breathalyzer, or on any one factor in the analysis. Post at __ (Slip op. at 9). Indeed, we state at the outset of this opinion that our holding is based on “the totality of the circumstances,” ante at __ (slip op. at 2), and that “the quantum of force used by the police, although significant to the analysis, is not the sole factor to be considered.” Post at __ (Slip op. at 32).
We are convinced that our disposition would not be altered by a remand in view of these uncontested facts: (1) defendant's alleged offense, although serious, did not involve the death of or injury to any other person; (2) the police possessed considerable evidence of defendant's impaired state apart from the blood sample, including that (a) defendant had flipped his car, which was found entangled in a chain-link fence, (b) the police had witnessed defendant's erratic behavior, slurred speech, and glassy eyes, and had smelled alcohol on his breath, and (c) defendant had made a misleading call for help from his car; (3) defendant's manifest fear of needles; (4) the nature of the search as a form of bodily intrusion; (5) defendant's violent reaction to that intrusion; (6) the testimony of the nurse that he had extracted defendant's blood at the request of the police; (7) the fact that two police officers assisted in the extraction by holding defendant to the table as his legs and one arm were strapped; and (8) the level of force itself.
Finally, the dissent sees strong parallels between the facts in this case and those in Schmerber. Although there may be some similarities in the two cases, there are major differences. As indicated above, in Schmerber, there was no use of force by the police, no physical resistance by the accused to the blood sample, and no indication that the accused feared needles. Clearly, those factors are evident here. We reiterate that the Schmerber Court explicitly limited its holding to the facts presented in that case. The Court stated:
We thus conclude that the present record shows no violation of [the defendant's] right under the Fourth . . . Amendment[] to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.
[Schmerber, supra, 384 U.S. at 772, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920 (emphasis added).]
In short, the “other conditions” not present in Schmerber, but present here, compel our disposition.
V.
Nor do we suggest that the right to be free of unreasonable searches turns solely on whether a defendant objects to police conduct or resists an otherwise legitimate law enforcement action. To the contrary, the same or even greater level of force than was used here could be reasonable in a different setting. We emphasize that the reasonableness inquiry we employ is fact sensitive and offers no sure outcomes in future cases. Graham, supra, 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456. As this case demonstrates, the quantum of force used by the police, although significant to the analysis, is not the sole factor to be considered. Ibid.
Similarly, we are satisfied that our holding will not unduly hamper the ability of the police to bring intoxicated motorists to justice. First, as noted, blood or breath testing is not always critical to the State's case. Second, we leave undisturbed the ability of the police to use all reasonable investigative techniques normally at their disposal to obtain blood samples or other proofs necessary for their work. Third, our sense from the record is that this case, with its unique facts and circumstances, is not likely to be replicated with any regularity.
In addition, with its prohibition against the use of force, New Jersey's implied consent statute embodies the Legislature's own concern over the intrusion engendered by conducting chemical tests against a driver's will. The Legislature resolved those concerns by providing sanctions for any person who refuses to submit to a Breathalyzer test when lawfully accused of driving while intoxicated. N.J.S.A. 39:4-50.4a. The Legislature is free to revise that statute to provide similar sanctions for persons who refuse to submit to blood tests in the same circumstances.
Lastly, we note for completeness that our disposition is required under both the Fourth Amendment and the analogous provision in the New Jersey Constitution. Although our holding is consistent with federal jurisprudence, we also conclude that the forced extraction of defendant's blood was impermissible on State constitutional grounds for the reasons previously expressed. See Cooke, supra, 163 N.J. at 666-67 (outlining those instances in which “this Court has interpreted our State Constitution as affording its citizens greater protections than those afforded by its federal counterpart”). See also State v. Johnson, ___ N.J. ___ (2001) (suppressing evidence obtained by invalid “no-knock” warrant on federal and State constitutional grounds).
In sum, the police had probable cause to arrest defendant, and due to exigency, they were not required to obtain a search warrant authorizing the blood sample. Moreover, the police acted properly in transporting defendant to a hospital and seeking the blood test in a medically reasonable manner. We conclude, however, that the police used unreasonable force to acquire the blood sample from defendant against whom they already had considerable evidence. On that basis, the fruits of the search cannot be sustained.
The judgment of the Appellate Division is reversed. On remand to the municipal court, the evidence of defendant's blood alcohol content will be suppressed, and defendant's not guilty plea will be reinstated. JUSTICES STEIN, COLEMAN, LONG and ZAZZALI join in JUSTICE VERNIERO's opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ joins.
SUPREME COURT OF NE JERSEY
A- 45 September Term 2000
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD A. RAVOTTO,
Defendant-Appellant.
__________________________
LaVECCHIA, J., dissenting.
The majority concludes, ante at ___ (slip op. at 34-35),
that “the police had probable cause to arrest defendant, and due
to exigency, they were not required to obtain a search warrant
authorizing the blood sample. Moreover, the police acted
properly in transporting defendant to a hospital and seeking the
blood test in a medically reasonable manner.” Yet, the majority
decides that application of the “objectively reasonable” test
nonetheless requires that the results of the blood test must be
suppressed because excessive force was employed to obtain the
blood samples. The majority's basis for its holding seems to be
the lack of proof in the record that less intrusive means to test
for blood alcohol content were unavailable. I disagree with the
majority. Although the availability of less intrusive testing
means is certainly a factor to be considered in weighing the
totality of circumstances under the “objectively reasonable”
test, I disagree with the majority's conclusion that the record
speaks with clarity on that issue. At best it is ambiguous. In
my view, to assess properly the totality of circumstances that
unfolded in the early morning hours of January 18, 1997, a remand
is necessary. Therefore, I respectfully dissent from the
judgment of the Court.
The majority recognizes Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed.2d 908 (1966), “as the seminal case involving the forced extraction of blood from an accused,” ante at ___ (slip op. at 10). Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed.2d 662 (1985), however, is instructive also. Justice Brennan wrote the opinions in both Winston and Schmerber, and he discussed Schmerber extensively in his Winston opinion. Winston and Schmerber set out the relevant factors to be considered and the weight or content to be ascribed to those factors in the balancing test for determining objective reasonableness of the force used in a search of the person that implicates bodily integrity. Variables on one side of the scale are (1) “the extent to which the procedure may threaten the safety or health of the individual” and (2) “the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity.” Winston, supra, 470 U.S. at 761, 105 S. Ct. at 1617, 84 L. Ed. 2d at 669. The Court also has ascribed content to those variables.