TELEPHONIC REQUESTS FOR SEARCH WARRANTS FOR BLOOD TESTS IN DRIVING WHILE INTOXICATED (DWI) CASES (MISSOURI V. MCNEELY) --RULE RELAXATION

NOTICE TO THE BAR

TELEPHONIC REQUESTS FOR SEARCH WARRANTS FOR BLOOD TESTS IN DRIVING

WHILE INTOXICATED (DWI) CASES (MISSOURI V. MCNEELY) --RULE RELAXATION

The attached October 8, 2013 New Jersey Supreme Court order addresses the process

for telephonic requests for search warrants for nonconsensual blood tests in certain DWI cases

and is in response to the decision of the United States Supreme Court in Missouri v. McNeely,

__ U.S. __, 133 S.Ct. 1552, 185 L.Ed. 2d 696 (2013). The order has a December 1, 2013

effective date.

In McNeely, the United States Supreme Court held “that in drunk-driving investigations,

the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every

case sufficient to justify conducting a blood test without a warrant.” 185 L.Ed.2d at 715.

Further, “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be

determined case by case based on the totality of the circumstances.” Id. at 709.

The New Jersey Supreme Court order published with this notice relaxes and

supplements the Part III (Criminal) and Part VII (Municipal Court) Rules so as to authorize

certain Municipal Court judges to issue search warrants for nonconsensual blood testing in all

driving while intoxicated (DWI) cases where no indictable charge is anticipated, with the

Assignment Judge to designate either all of the Municipal Court judges in the county to have

this authority or just particular specified judges. Such authorization is not limited to evening or

weekend hours. Further, the search warrant may be issued in this limited category of cases by

a designated Municipal Court judge in person or by telephone, radio or other means of

electronic communication upon sworn oral testimony of a law enforcement officer or prosecuting

attorney communicated to the issuing judge, pursuant to the procedures outlined in R. 3:5-3(a)

and (b). Superior Court judges will handle search warrants for blood tests in those DWI cases

where an indictable charge is anticipated. The Supreme Court order does not affect any current

procedures for Municipal Court judges to issue in-person search warrants for other matters.

In accordance with the Supreme Court’s holding in State v. Pena-Flores, 198 N.J. 6

(2009), the attached Order also removes the requirement in R. 3:5-3(b) that exigent

circumstances must exist in order to issue search warrants by telephone, radio or other means

of electronic communication.

Further, the Order also asks the Supreme Court Criminal Practice Committee and

Municipal Court Practice Committee to consider and make recommendations regarding the

scope of authority for Municipal Court judges to issue telephonic search warrants in all cases.

/s/ Glenn A. Grant

_____________________________

Glenn A. Grant, J.A.D.

Acting Administrative Director of the Courts

Dated: November 14, 2013

SUPREME COURT OF NEW JERSEY

It is ORDERED, pursuant to N.J. Const. Art. VI, sec. 2, par.3, that effective

December 1, 2013 and until further order, Part III (Criminal) and Part VII (Municipal

Court) of the Rules Governing the Court of the State of New Jersey are

supplemented and relaxed so as to permit Municipal Court judges, as designated by

the Assignment Judge, to issue search warrants for nonconsensual blood testing in

all driving-while-intoxicated cases where no indictable charge is anticipated; this

authorization is not limited to evening or weekend hours and such search warrants

may be issued in-person or by telephone, radio or other means of electronic

communication on the sworn oral testimony of a law enforcement officer or

prosecuting attorney communicated to the issuing judge, pursuant to the procedures

outlined in R. 3:5-3(a) and (b).

It is FURTHER ORDERED that R. 3:5-3(b) is also specifically relaxed so as to

remove the requirement that exigent circumstances must exist to issue a search

warrant by telephone, radio or other means of electronic communication.

It is FURTHER ORDERED that the Court’s Criminal Practice Committee and

Municipal Court Practice Committee are asked to consider the scope of authority for

Municipal Court judges to issue telephonic/electronic search warrants in all cases

and to provide the Court with any proposed rule recommendations.

For the Court,

/s/ Stuart Rabner

Chief Justice

Dated: October 8, 2013