A pending bill would make it mandatory for drivers involved in fatal accidents to submit to a drug test. Under the existing law, police can test a driver for alcohol with a blood sample or a breathalyzer, but must demonstrate probable cause and ask for consent in order to test for drugs. If passed, the bill will expand the range of required chemical testing at the scene of an accident, but criminal lawyers in New Jersey say that the new requirements could violate drivers’ Fourth Amendment rights.
The bill, A-4464, was filed on September 9th, and has not yet been formally introduced to the Assembly. Lawmakers expect it to appear next month, probably in front of the Law and Public Safety Committee. It states that “a blood sample shall be obtained at any time a person has been operating a motor vehicle involved in an accident resulting in the death of another person.” Along with this requirement, anyone who refuses to allow police to collect a blood sample for drug testing will have their license suspended, identical to the penalty for refusing a breathalyzer.
The bill is known as Michelle’s Law, named for Michelle Sous, a 17-year-old who was killed in a car crash last St. Patrick’s Day. A pick-up truck struck Sous as she crossed the street in front of her house in North Haledon. At the time of the accident, police did not test the driver for drugs or alcohol because they did not find probable cause to warrant it. Under the new bill, the need for probable cause would be eliminated. The bill’s supporters say that eliminating warrants and probable cause will make it easier for police to test for drugs in cases where the driver may be too injured or impaired to consent to the test.
But criminal defense lawyers in New Jersey say that this is one of the reasons the bill may not go far with state legislators. Dale Jones, the state’s Assistant Public Defender, pointed to Missouri v. McNeely, a U.S. Supreme Court case from last April. The court ruled that, per the Fourth Amendment, law enforcement officials must obtain a search warrant or receive some form of consent before taking a blood sample from a driver to test for alcohol. This requirement is intended to protect the driver’s rights, and defense attorneys say that could be extended to include narcotic and prescription drugs as well.
In McNeely, the Supreme Court held that blood alcohol content diminishes over time, but this does not allow police to forgo the warrant requirement. In New Jersey, a telephonic search warrant can be obtained quickly, sometimes in less than half an hour, and still get the necessary information regarding the driver’s state of intoxication or impairment.
At Helmer, Conley, and Kasselman, PA, our criminal lawyers keep up-to-date with new bills and laws that may threaten clients’ rights, and represent anyone who has been charged with driving or causing an accident while under the influence of drugs or alcohol.