E570 In this issue: 1. When a driver is unconscious 2. Free Will Seminar
NJ LAWS EMAIL NEWSLETTER E570 Kenneth Vercammen, Attorney at Law October 11, 2019 E570 In this issue: 1. When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generall
1. When a driver is unconscious and cannot be given a breath test1. When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant Mitchell v. Wisconsin.
(a) BAC tests are Fourth Amendment searches. See Birchfield v. North Dakota,579 U.S. ___, ___, 136 S.Ct. 2160, 195 L.Ed.2d 560. A warrant is normally required for a lawful search, but there are well-defined exceptions to this rule, including the "exigent circumstances" exception, which allows warrantless searches "to prevent the imminent destruction of evidence." In McNeely, this Court held that the fleeting nature of blood-alcohol evidence alone was not enough to bring BAC testing within the exigency exception. Missouri v. McNeely 133 S.Ct. 1552 But in Schmerber v. California 86 S.Ct. 1826the dissipation of BAC did justify a blood test of a drunk driver whose accident gave police other pressing duties, for then the further delay caused by a warrant application would indeed have threatened the destruction of evidence. Like Schmerber, unconscious-driver cases will involve a heightened degree of urgency for several reasons. And when the driver's stupor or unconsciousness deprives officials of a reasonable opportunity to administer a breath test using evidence-grade equipment, a blood test will be essential for achieving the goals of BAC testing.
(b) Under the exigent circumstances exception, a warrantless search is allowed when "`there is compelling need for official action and no time to secure a warrant.'" McNeely 133 S.Ct. 1552. P. 2534.
(1) There is clearly a "compelling need" for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. First, highway safety is a vital public interest-a "compelling" and "paramount" interest, Mackey v. Montrym 99 S.Ct. 2612 Second, when it comes to promoting that interest, federal and state lawmakers have long been convinced that legal limits on a driver's BAC make a big difference. And there is good reason to think that such laws have worked. Birchfield 136 S.Ct., at ___. Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court. Id., at ___, 136 S.Ct., at ___. And such testing must be prompt because it is "a biological certainty" that "[alcohol dissipates from the bloodstream," "literally disappearing by the minute." McNeely 133 S.Ct. 1552 (ROBERTS, 2530*2530 C.J., concurring). Finally, when a breath test is unavailable to promote the interests served by legal BAC limits, "a blood draw becomes necessary." Id., at 133 S.Ct. 1552.
(2) Schmerber demonstrates that an exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Because both conditions are met when a drunk-driving suspect is unconscious, Schmerber controls. A driver's unconsciousness does not just create pressing needs; it is itself a medical emergency. In such a case, as in Schmerber, an officer could "reasonably have believed that he was confronted with an emergency." 86 S.Ct. 1826. And in many unconscious-driver cases, the exigency w
2. Free Will Seminars and Speakers Bureau available to Middlesex County Groups.2. Free Will Seminars and Speakers Bureau available to Middlesex County Groups.
At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates. We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours. For additional information on the Legal Seminars, contact our Coordinator, Kenneth Vercammen's law office at (732) 572-0500, or fax 732-572-0030.
Years ago the AARP Network Attorneys of the Edison/Metuchen/Woodbridge area several years ago established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. Now, Kenneth Vercammen and volunteer attorneys of the Middlesex County Estate Planning Council have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups. These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar. The following Seminars are now available:
Details on the 2 programs currently offered:
1. WILLS & ESTATE ADMINISTRATION- PROTECT YOUR FAMILY AND MAKE PLANNING EASY
2. POWER OF ATTORNEY to permit family to pay your bills if you are temporarily disabled and permit doctors to talk with family
All instructors are licensed attorneys who have been in practice at least 25 years. All instructors are members of the American Bar Association, New Jersey State Bar Association, and Middlesex County Bar Association. All programs include free written materials.
You don't have to be wealthy or near death to do some thinking about a Will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of state law.
Topics discussed include: Who needs a Will?; What if you die without a Will (intestacy)?; Mechanics of a Will; Selecting an executor, trustee, and guardian; Proper Will execution; Inheritance Taxes, Estate Taxes "Living Will"; Powers of Attorney; Federal Estate Tax, Bequests to charity, Why you need a "Self-Proving" Will and Estate Administration/ Probate.
Sample materials: Hand-outs on Wills, Living Wills/Medical Advance Directive, Power of Attorney, Probate and Administration of an Estate, Elder Law, Probate
About the speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. He is the author of the American Bar Association's book "Wills and Estate Administration".