The Edward M. Janzekovich Law Blog has discussed several new laws being enacted in Canada and compared those laws to New Jersey’s statutes on intoxicated driving. Canada’s new laws against driving impairment are already be called amongst the toughest in the world, and many would say they are even harsher than New Jersey’s already strict laws that aim to penalize and/or prevent drunk driving.
We previously went over how Canadian police officers are now permitted to pull over a vehicle and ask the driver to submit to a breath test at random without cause, and anyone convicted will be subjected to even harder consequences.
This week, we will discuss Canada’s law that allows police officers to extrapolate or determine a driver’s blood alcohol content at the time the driver was driving, even 10 hours after the person was driving. This provision for extrapolating BAC is extremely harsh, because a driver can be convicted long after he or she puts down the keys.
Canada’s Provision for Determining a Driver’s Past BAC
Under Canada’s legal system, a police officer may take a driver’s blood sample at any time after he or she was driving and then use a formula to count back and figure out the driver’s past BAC. This means that law enforcement officials can arrest a driver and take his or her blood sample long after the person is out of the car and no longer driving. This blood sample can then be tested, and the results can be adjusted based on the formula to approximate the driver’s BAC hours earlier, when he or she was driving.
As long as there is a minimum of 20 milligrams of alcohol in the blood at the time of testing, police officers are entitled to add 10 mg of alcohol for every hour to determine what the person’s BAC was even 10 hours earlier. The law has no provisions for account for things that could affect the results, like weight, genetics, food intake, drugs, disease, or other factors.
New Jersey’s Law Requiring a Blood Draw Within a Reasonable Time
Previously, Canadian law enforcement were required to obtain blood samples within two hours of the person driving. This is similar to the current law in New Jersey.
When somebody is charged with drunk driving in the Garden State, one of the ways the New Jersey law enforcement can prove DUI or DWI is by introducing evidence that the driver’s BAC was above the legal limit of .08% or higher. Because a breathalyzer cannot be used in all situations, police officers are sometimes required to request a blood draw. For instance, a driver who is involved in a car accident may be unconscious or too injured to provide a breath sample. In those cases, the investigating officer may attempt to get a blood sample, either by getting a warrant, getting consent, or proving exigent circumstances.
If a blood draw is taken, the general rule in New Jersey is that the blood sample must be taken in a reasonable period of time from when the driver was last driving. A blood draw taken within a reasonable time period of the encounter is necessary to ensure that the BAC fairly reflects the level of intoxication when the motorist was operating his or her vehicle.
New Jersey has no provision allowing for extrapolating or approximating BAC backwards to the time the driver was driving involving a charge of NJSA 39:4-50. Therefore, unlike under the new Canadian law, a good attorney in New Jersey may be able to have any blood BAC evidence dismissed if he or she can show that there was an unreasonable delay in obtaining the sample or if there was an intervening incident – such as additional drinking, eating, taking medications, etc. – that could affect a driver’s results or condition.
How a Lawyer Can Help if You are Arrested or Charged in NJ
As noted last week, Canada’s new laws have been specifically redesigned to make defending against DUI and DWI charges harder. In New Jersey, getting a good lawyer as soon as possible can still make a huge difference, and an attorney may even be able to have the case dismissed completely. If you or someone you know is charged with driving while intoxicated, an experienced lawyer will be able to review the evidence against you and put up the best defense on your behalf.
New Jersey DUI Attorney Edward M. Janzekovich Is There for You If You’ve Been Charged with Drunk Driving
DWI/DUI cases can often involve complicated issues of evidence, and successfully challenging that evidence requires knowledge and experience about the law. If you or someone you know is facing a DWI charge, a knowledgeable drunk driving attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.
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