In State v. Zalcberg, the New Jersey Supreme Court held that police ignorance of procedures to be followed to obtain a warrant justified a warrantless sampling of the defendant's blood. The court's decision creates a new exception to the warrant requirement that is disturbing and completely at variance with its precedents and those of the United States Supreme Court.

The case arose from a serious automobile accident, allegedly caused by the inebriation of the defendant. Nine law enforcement officers, in addition to fire and medical personnel, responded to the incident. Officials began responding to the scene before 8:35 p.m. By 9:05 p.m. the road had been closed and secured. At approximately 9:25 p.m. a paramedic advised one of the responding officers that he had smelled alcohol on the breath of the defendant, an unconscious female. Shortly before, one of the officers saw a small bottle of alcohol on the console of defendant's vehicle. It was not until 10:36 p.m. that defendant was driven to the hospital to obtain a sample of her blood. Defendant arrived at the hospital at 10:53 p.m., but her blood was not drawn until 12:05 a.m. In the two hours and 45 minutes between when the officers had cause to believe the defendant had consumed alcohol, and the time her blood sample was taken, the police neither discussed nor made any effort whatever to obtain a telephonic warrant.

The trial judge, after hearing testimony, made detailed factual findings and suppressed the blood sample. The court found that a judge would have been available to issue a warrant had a timely application been made. The court also found that the police had failed to contact a judge because they were unaware of the procedures for obtaining a telephonic warrant. The Appellate Division overturned the trial court's ruling, with the Supreme Court affirming the Appellate Division's order.

The court ruled that the circumstances were emergent, and because the police had been unaware of the procedures for obtaining a warrant by telephone, their failure to obtain a warrant was justified.

The court's decision is at odds with landmark decisions of the United States Supreme Court, to say nothing of the New Jersey Supreme Court's own rulings. In 2013, the United States Supreme Court, in State v. McNeely, held that, in the absence of exigent circumstances, before blood may be drawn from a non-consenting suspect, a search warrant must be obtained. The natural dissipation of alcohol, the court ruled, is not, in itself, an exigency sufficient to justify an exception to the warrant requirement.

Dissenting in Zalcberg, Justices Albin and Timpone sharply criticized the court for permitting police ignorance of warrant procedures to be a factor in determining whether exigent circumstances excused police failure to obtain a warrant. Also criticized was the court's refusal to defer to factual findings made by the trial court, as is required as a matter of course in all matters on appeal.

New Jersey's Supreme Court has historically recognized greater freedoms under New Jersey's Constitution than the United States Supreme Court has recognized under parallel provisions of the United States Constitution. In Zalcberg, the court not only failed to interpret New Jersey's Constitution as requiring that a warrant be obtained before blood is drawn from a non-consenting defendant believed to have been driving while intoxicated, but it refused to follow the United States Supreme Court's clear mandate that a warrant be obtained under such circumstances.