In State v. Zalcberg, decided on March 27 of this year, the New Jersey Supreme Court seems to have created a “good faith” extension to the exigency exception to the warrant requirement.

Defendant was driving through a major intersection in Freehold Township at night when her vehicle collided with another. The crash resulted in the fire department having to use the jaws of life to remove the roof of defendant's vehicle in order to free her and her two passengers. The three were flown to the hospital by helicopter; later on one of the passengers died of her injuries.

Emergency medical personnel told police at the scene that defendant smelled of alcohol. The police observed a small bottle of alcohol on the vehicle's console. An officer was dispatched to the hospital to obtain a blood sample from defendant. He arrived at the hospital less than 20 minutes after being dispatched. He had to wait an hour before blood could be drawn. Because defendant was unconscious, blood was drawn by a nurse at the direction of the police. At no time did the officer, or the police, apply for a search warrant.

In 2013 the U.S. Supreme Court decided McNeely v. Missouri, which held that the dissipation of alcohol from the blood—the loss of evidence through metabolizing the alcohol—does not in itself create an exigency exception to the Fourth Amendment's warrant requirement. The court noted that alcohol begins dissipating once it is absorbed at about .015 percent per hour. Note that alcohol is generally not fully absorbed until about one hour after the last drink. The court said there is always some delay in obtaining a blood sample, but with modern communications technology, the time to produce a warrant is reduced so the process can begin while defendant is transported to the hospital. The court held that if a police officer can reasonably obtain a warrant for a blood test without significantly undermining the efficacy of the search, the Fourth Amendment requires that they do so.

Yet our Supreme Court decided that the search of Ms. Zalcberg's body did not require a warrant. Their decision was based on the “objective of exigency of the circumstances,” even though the officer had over an hour to use a phone to call a judge to apply for a warrant. In justifying their decision they said it was common practice in that police department to obtain blood without a warrant; none of the officers had been trained in obtaining a warrant by telephone, and there was no formal procedure for obtaining one. None of the officers thought they had to get a warrant. The court also used the rationale that this was a serious accident.

The real meaning of this decision is that the police were acting in good faith based on their ignorance of the law; that review by a neutral and detached magistrate is not necessary before the police could require a nurse to stick a needle in Ms. Zalcberg's body as long as the police had probable cause, because alcohol in the blood naturally dissipates over time.

The court ignored McNeely's acknowledgment of new communications technology and greater understanding of the absorption and rates of dissipation of alcohol in the body. It also ignored the command of the Fourth Amendment that if the police can obtain a warrant they must do so.

Good faith of the police, even if they have probable cause, has not been an exception to the warrant requirement in New Jersey since State v. Novembrino was decided by the New Jersey Supreme Court in 1987. And McNeely holds that, as long as the time to obtain the warrant did not significantly interfere with the search, the police must obtain a warrant in order to search.

Mitchell E. Ignatoff is Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney. His office is located in Englewood Cliffs (www.meignatoff.com).