The opinion of the court was delivered by: Verniero, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 333 N.J. Super. 247 (2000).
This case implicates defendant's right to be free of unreasonable searches under the federal and State Constitutions. The police arrested defendant for driving while intoxicated. Thereafter, they transported defendant to a hospital where an officer requested that medical personnel take samples of his blood to test for drug and alcohol content. Over defendant's strenuous objections, his legs and his left arm were strapped to a table, and several persons, including two police officers, held him down as a nurse drew eight vials of blood. The Law Division disallowed the use of that evidence on constitutional grounds. On leave to appeal granted to the State, the Appellate Division reversed, finding no constitutional violation. We disagree. We hold that under the totality of the circumstances the police used unreasonable force in obtaining defendant's blood sample. In view of that holding, we conclude that the Law Division properly suppressed defendant's blood alcohol content level as evidence of intoxication.
Except as noted, the facts are clearly set forth in the record. In the early morning hours of January 18, 1997, defendant Richard Ravotto consumed alcohol at a friend's house. At about six o'clock that morning, an Edgewater police officer discovered that defendant had overturned his car in a one-car accident. Officer Steven Kochis found defendant lying in the back of his car, which was entangled in a chain-link fence. The officer asked defendant if he was all right and whether anyone else was in the car. Defendant responded that he was all right and that he was alone. When an ambulance arrived, however, defendant said, "Hurry up. Hurry up. There's three of us in here." When defendant came out of the car, he said, "Ha, ha, I was only kidding."
Another officer, Edmond Sullivan, arrived at the scene. Both officers smelled a strong odor of alcohol on defendant's breath. Although he appeared disheveled, defendant had no visible injuries. As a precaution, the police tried to get defendant onto a backboard so he could be taken to a hospital in the ambulance. Defendant refused medical treatment, insisting that he was not injured. Believing such treatment was in defendant's best interests, the police and other emergency workers forced defendant onto the backboard and prepared to transport him to nearby Englewood Hospital. Defendant vigorously resisted those efforts.
Suspecting that defendant was under the influence of alcohol, Officer Kochis instructed Officer Sullivan to accompany defendant to the hospital and obtain a blood sample from him. Before departing the scene, the police placed defendant under arrest for driving while intoxicated. Defendant continued to struggle against the restraints of the backboard on the way to the hospital. Once there, defendant tried to punch an attending physician who attempted to take his blood pressure.
Shortly after arriving at the hospital, Officer Sullivan requested that medical personnel take a blood sample from defendant to test for drug and alcohol content. The officer did not obtain a warrant authorizing the taking of the sample. Before the hospital could take the blood, a police blood kit had to be delivered from police headquarters. Officer Sullivan waited an hour to receive the blood kit, then provided it to a registered nurse who took the sample. At no time did the officer offer defendant a "Breathalyzer" test as an alternative method of testing for alcohol content levels.
To obtain defendant's blood, Officer Sullivan and hospital personnel had to restrain defendant. Defendant's legs and his left arm were strapped to a table, and several persons, including Officer Sullivan and the officer who delivered the blood kit, held him down. The record is undisputed that defendant screamed and struggled to free himself as the nurse drew his blood. Defendant later testified that he had said repeatedly, "I'm afraid of needles. I have no problem giving you a Breathalyzer sample if that's what you want but do not take my blood." He claimed that a childhood accident had made him afraid of needles. Defendant also testified that he had felt as though he were "being raped" as the blood was taken.
The nurse took eight vials of blood, four for use by the police and four for the hospital's diagnostic purposes. The record does not clearly indicate whether the hospital would have extracted defendant's blood absent police involvement. Defendant was kept in restraints for about six hours after the blood samples were taken, and then discharged. Defendant received no other treatment while he was at the hospital.
Defendant was charged with violating N.J.S.A. 39:4-50, which sets forth the penalties for driving while intoxicated. A related measure, New Jersey's "implied consent" statute, provides that drivers licensed in this State shall be deemed to have given their consent to the taking of breath samples "for the purposes of making chemical tests to determine the content of alcohol in [their] blood[.]" N.J.S.A. 39:4-50.2(a). The statute prohibits the police from using force in administering such tests, stating that "[n]o chemical test, provided in this section, or specimen relating thereto, may be made or taken forcibly and against physical resistance thereto by the defendant." N.J.S.A. 39:4- 50.2(e). A driver's failure to submit to a lawfully requested test results in the loss of driving privileges for an extended period. N.J.S.A. 39:4-50.4a. Although the implied consent statute pertains solely to breath tests and thus is not applicable, State v. Woomer, 196 N.J. Super. 583, 586 (App. Div. 1984), we have described it here to provide a context for our disposition.
Defendant moved before the municipal court to suppress the results of the blood test, which revealed a blood alcohol content of 0.288 percent (nearly three times the legal limit). The court denied defendant's motion, holding that the police were under no obligation to give him the option of taking a Breathalyzer test. The court also concluded that the police did not have to obtain a search warrant to extract the blood because of the evanescent nature of that evidence. The court found nothing improper about the use of force by the police in taking blood from defendant.
Defendant entered a conditional plea of guilty to driving while intoxicated and appealed the denial of his suppression motion to the Law Division. The Law Division reversed the municipal court, holding that the police should have obtained at least a telephonic warrant authorizing the blood sample. The court then entered a not guilty plea on defendant's behalf and remanded the case to the municipal court for trial.
The State moved for leave to appeal before the Appellate Division, which granted the State's motion and reversed the Law Division's determination. State v. Ravotto, 333 N.J. Super. 247 (App. Div. 2000). The Appellate Division noted that the rules established by the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), permit blood to be taken over the opposition of a suspect in certain instances. Ravotto, supra, 333 N.J. Super. at 254. The panel cited other authority, including State v. Macuk, 57 N.J. 1 (1970), in which this Court held that the defendant's failure to consent to a breath test did not violate the privilege against self-incrimination. Ravotto, supra, 333 N.J. Super. at 254. The panel also cited Woomer, supra, 196 N.J. Super. at 587, in which the Appellate Division approved a police officer's threat of force to obtain a blood sample from an intoxicated driver. Ravotto, supra, 333 N.J. Super. at 255.
Reasoning from those cases, the Appellate Division concluded that "a motor vehicle driver arrested for driving under the influence has no legal right to refuse chemical testing and the police are not required to obtain his or her consent. Further, such a driver can be restrained in order to extract a blood sample." Id. at 255-56. In view of defendant's accident and the evanescent nature of blood alcohol levels, the panel concluded that the police acted reasonably in transporting defendant to the hospital and ordering a blood test. The court also held that the police officer was not required to seek a telephonic search warrant simply because there was a time lag at the hospital during which he waited for the blood kit. Id. at 256. This Court granted defendant's petition for certification. 165 N.J. 677 (2000). We also granted the motion of the Attorney General for leave to appear as amicus curiae. (For convenience, we will refer to the State and the Attorney General collectively as the State.) We now reverse.
Under the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, a search or an arrest by the police must be reasonable, measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421, 136 L. Ed. 2d 347, 354 (1996); State v. Stelzner, 257 N.J. Super. 219, 229 (App. Div.), certif. denied, 130 N.J. 396 (1992). Prior to conducting a search, the police must obtain a warrant from a judicial officer unless the search falls under one of the recognized exceptions to the warrant requirement. Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S. Ct. 1727, 1731, 18 L. Ed. 2d 930, 935 (1967); State v. Lund, 119 N.J. 35, 37 (1990).
As we have stated in other settings, "there is a constitutional preference for a warrant, issued by a neutral judicial officer, supported by probable cause." State v. Cooke, 163 N.J. 657, 670 (2000). Accordingly, the burden is on the government to prove the exceptional nature of the circumstances that exempts it from the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 35, 90 S. Ct. 1969, 1972, 26 L. Ed. 2d 409, 413 (1970); State v. Henry, 133 N.J. 104, 110, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993). The State's taking of blood from a suspect constitutes a search within the meaning of the Fourth Amendment. Schmerber, supra, 384 U.S. at 767, 86 S. Ct. at 1834, 16 L. Ed. 2d at 918.
With or without a warrant, the police may not use unreasonable force to perform a search or seizure of a person. Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). "[T]he ?reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are ?objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456. See also Abraham v. Raso, 183 F.3d 279, 289 (3d Cir. 1999) (emphasizing that under Graham, "reasonableness should be assessed in light of the ?totality of the circumstances'").
More specifically, Graham instructs courts to employ a balancing test to determine whether the use of force in a given case is reasonable. The Supreme Court explained that the proper application [of the balancing test] requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. [Graham, supra, 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455.]
Because the test is an objective one, "[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional." Id. at 397, 109 S. Ct. at 1872, 104 L. Ed. 2d at 456.
Against the backdrop of those general principles, Schmerber stands as the seminal case involving the forced extraction of blood from an accused. In Schmerber, the defendant and a companion had been drinking at a California tavern. Schmerber, supra, 384 U.S. at 759, 86 S. Ct. at 1829, 16 L. Ed. 2d at 912. They drove from the establishment around midnight in the defendant's car, which then skidded and struck a tree. Ibid. Both the defendant and his companion were taken to a hospital for treatment of their injuries, after which the defendant was arrested for driving while intoxicated. Id. at 758, 86 S. Ct. at 1829, 16 L. Ed. 2d at 913. The police directed hospital personnel to take a blood sample to test the defendant's blood alcohol level, and the defendant apparently submitted to the test but did not consent to it. Id. at 758-59, 86 S. Ct. at 1829, 16 L. Ed. 2d at 912-13.
The defendant was convicted of drunk driving and appealed on several grounds, including that the blood test violated his rights under the Fourth Amendment. In rejecting the defendant's claims, the Supreme Court framed the issues this way:
[T]he Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring [the defendant] to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness. [Id. at 768, 86 S. Ct. at 1834, 16 L. Ed. 2d at 918.]
Within that analytical framework, the Court concluded that the defendant's intoxicated appearance (his watery, bloodshot eyes and the smell of liquor on his breath) provided probable cause for the arrest. Id. at 768-69, 86 S. Ct. at 1834-35, 16 L. Ed. 2d at 918-19. It also found that because blood alcohol levels diminish rapidly, the police had acted reasonably in taking a sample of the defendant's blood after they had arrested him. Id. at 770-71, 86 S. Ct. at 1835-36, 16 L. Ed. 2d at 920. The Court further found that because it was minimally intrusive and highly accurate, the defendant's blood test was a reasonable measure of blood alcohol content. Id. at 771, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920.
Particularly pertinent to this case, the Court suggested that compulsory blood tests may not be permissible in all circumstances. In that regard, the Court noted that the defendant was "not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the ?Breathalyzer' test [the defendant] refused . . . . We need not decide whether such wishes would have to be respected." Ibid. The Court concluded that the defendant's blood test, performed by a physician in a hospital environment and without the use of force, had been performed in accordance with medically acceptable practices. Ibid.
The closest analogue to Schmerber in our State jurisprudence is State v. Macuk. In that case, the police arrested the defendant after he drove his car off a road and into a ditch. Macuk, supra, 57 N.J. at 5. The defendant admitted that he had been drinking, and the police noticed that the defendant was swaying as he stood and slurring his speech. Ibid. At the police station, the police asked the defendant for breath samples, and he readily consented. Id. at 6-7. The breath test revealed a blood alcohol content of 0.18 percent, which exceeded the 0.15 percent limit in effect at that time. Id. at 7. The defendant was convicted of drunk driving.
On appeal the defendant argued that before administering the breath test, the police should have informed him of the privilege against self-incrimination as required under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Macuk, supra, 57 N.J. at 5. The Court rejected that claim. Analyzing New Jersey's implied consent statute, N.J.S.A. 39:4-50.2, and the applicable case law, the Court stated:
There is a clear legal right to require a motor vehicle operator, arrested on probable cause for driving ?under the influence' or ?while impaired,' to submit to a chemical test of bodily substances to determine the amount of alcohol in his blood, or, for that matter, to a physical coordination test. A breath test must, of course, be administered in accordance with the requirements of N.J.S.A. 39:4-50.2 and a blood test in a medically acceptable manner and environment. The latter may be used on any occasion, but will be especially useful where the person is physically unable or has refused to take a breath test. Since such tests, properly undertaken, violate no constitutional safeguard and are permissible as in any other non-testimonial situation and since our statute no longer requires consent in any situation, acquiescence is not legally significant or necessary. There is no legal right or choice to refuse, despite the authorized additional penalty for refusal in the case of the breath test. [Id. at 14-15 (citations omitted).]
The Court concluded that the defendant's breath sample was non-testimonial in character and thus did not violate his Fifth Amendment privilege against self-incrimination. Id. at 14. See also State v. Blair, 45 N.J. 43, 46 (1965) (holding that taking of blood is not covered by Fifth Amendment). Importantly, the Macuk Court did not directly address any Fourth Amendment issues. The Court's language, therefore, suggesting that the acquiescence of an accused is "not legally significant or necessary" when the government extracts blood, is dictum in the context of the Fourth Amendment.
The Appellate Division applied Macuk in State v. Burns, 159 N.J. Super. 539 (App. Div. 1978). In Burns, the police arrested the defendant because of his erratic driving. Id. at 541. The defendant suffered a contusion on his forehead while in police custody, and the police transported him to a hospital for medical treatment. Ibid. The defendant refused to consent to breath and blood tests. Ibid. Because the medical personnel refused to take a blood sample without the defendant's consent, the police took the defendant to a second hospital. Ibid. There, the defendant submitted to, but did not consent to, a blood test. Ibid.
The trial court suppressed the results of the blood test, concluding that it had been obtained contrary to N.J.S.A. 39:4- 50.2, which, as noted, provides that "[n]o chemical test . . . may be made or taken forcibly and against physical resistance thereto by the defendant." The court reasoned that the defendant was coerced into submission by being taken in handcuffs to the second medical center. Id. at 542. The Appellate Division reversed, concluding that the trial court had misinterpreted the statute. Ibid. The panel held that although the defendant may have been coerced into having his blood drawn, the test itself was not performed forcibly or against physical resistance. Ibid. Citing Macuk, the court also observed that the statute is limited to breath tests. The court concluded that "consent is not required to the taking of a blood sample, but the taking of such sample must be done in a medically acceptable manner and environment . . . ." Id. at 544. The court added, without analysis, that the taking of blood must be performed "without force or violence or the threat of same." Ibid.
In another case that involved the submission of a drunk- driving suspect to a blood test, the Appellate Division again held that consent is not required to take a blood sample. Woomer, supra, 196 N.J. Super. at 585. In Woomer, the defendant, whose blood alcohol content was 0.225 percent, submitted to a blood test only after the police informed him that they could use force to take a sample. Ibid. The trial court suppressed the result of the test, finding that it had been obtained contrary to the implied consent statute. Ibid. The Appellate Division reversed, affirming that the statute did not apply to blood samples. The panel also stated that the fleeting reference to the use of ...