The Appellate panel continued in relevant part. We likewise reject defendant’s claim under Point II that the taking of his blood over his objection violated his rights under the Fourth Amendment. Here, unlike in Ravotto, defendant never expressly refused to give a blood sample, did not manifest a fear of needles, did not express a willingness to instead take a breathalyzer test, and had no “violent reaction to the bodily intrusion engendered by the search.” Also, unlike the defendant Ravotto, who belligerently and violently resisted the blood draw, defendant here, when asked whether he agreed to have his blood drawn, failed to answer and appeared be” in and out of consciousness.” The issue of excessive force, which was the doctrinal underpinning of Ravotto, is entirely absent here, and accordingly no constitutional violation occurred.
Our conclusion that the conviction must be reversed and the matter remanded for a new trial makes unnecessary any consideration of Points IV, V, and VI.
Reversed and remanded for a new trial.
Judge Cuff did not participate at oral argument but with the consent of the parties, she has participated in the disposition of this appeal. In the municipal court, the defendant had also been convicted of violating N.J.S.A. 39:4-96, reckless driving. At the trial de novo, he was found not guilty of that charge.
The Law Division sentenced defendant to a total of thirty days community service, forty-eight hours in the Intoxicated Driver Resource Center, and a two-year suspension of driving privileges. A DWI charge is a quasi-criminal offense entitling a defendant to the protection of the confrontation clause. See Widmaier (1999).
Berezansky was decided after the trial de novo in the Law Division and after briefs were submitted on appeal. After argument, we invited and received supplemental briefs.
“Trial de novo” refers to the municipal appeal. There are no live witnesses or new testimony during a trial de novo.