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State v. Konzelman

August 2, 1985

STATE OF NEW JERSEY, PLAINTIFF,
v.
ALAN S. KONZELMAN, DEFENDANT



Donato, J.s.c.

Donato

OPINION

Defendant is charged with a violation of N.J.S.A. 39:4-50 and seeks to suppress the results of a blood test taken in New York (hereafter N.Y.).

The question is whether such evidence obtained by New Jersey (hereafter N.J.) police without a warrant in N.Y. for an offense committed in N.J. should be suppressed because such evidence was obtained in violation of N.Y. law but not N.J. law.

Defendant argues that seizure of evidence in N.Y. should be controlled by N.Y. law. Defendant further argues that even if N.J. law applies, such evidence should be suppressed in N.J. because the N.J. police had no authority to seize evidence in N.Y.

The State argues that N.J. law should govern and that the N.J. police acting prudently should be able to search in N.Y.

On January 23, 1985 at 10:30 p.m. a Wanaque police officer was dispatched to an accident scene on Ringwood Avenue. He administered first aid to the driver, defendant here, who was unconscious behind the wheel. The police officer detected an odor of alcohol on his breath. He had contacted his headquarters in order to determine the availability of hospital treatment in New Jersey and was informed that the most immediate treatment could be obtained at Good Samaritan Hospital in Suffern, N.Y. He took defendant there for emergency treatment.

At the hospital, defendant regained consciousness and was informed of his rights under N.J.S.A. 39:4-50. Defendant indicated that he would take a breath test but would not submit to a blood test. The police officer indicated that regardless of his refusal the blood sample could be taken from defendant and to that end the police officer sought assistance from hospital personnel. The hospital personnel stated that they would not take a sample of defendant's blood citing Good Samaritan Hospital policy no. 6, "Court order may be obtained by District Attorney or Police if individual withdraws consent and meets the criteria of V.T.L. 1194-A."*fn1 The Wanaque police officer indicated that he would obtain the assistance of local N.Y.

police to restrain defendant for the purpose of taking the blood. Defendant then consented to the blood sample and a reading of .22% BAC was obtained which defendant seeks to suppress.

Under N.Y. law, any person operating a motor vehicle in N.Y. shall be deemed to have consented to such a blood test administered at the direction of the police provided the officer has reasonable grounds. If the individual refuses to consent, a license revocation procedure is triggered. In addition, if a defendant refuses, evidence of chemical analysis of blood sample taken from a defendant are inadmissible and suppressible unless a court order is obtained. N.Y. Veh. & Traf. Law ยง 1194 (McKinney 1970); People v. Moselle, 57 N.Y. 2d 97, 439 N.E. 2d 1235, 454 N.Y.S. 2d 292 (Ct.App.1982).*fn2

In N.J. a blood sample may be taken involuntarily and no consent is required as long as a subject who resists a blood sample can be restrained in a medically acceptable way as could any other uncooperative ...


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