Forced Blood Sample – State v. Ravotto

Supreme Court of New Jersey.

STATE of New Jersey, Plaintiff-Respondent,
Richard A. RAVOTTO, Defendant-Appellant.
Argued May 1, 2001.
Decided July 26, 2001.

After his suppression motion was denied, defendant entered conditional guilty plea in the Edgewater Municipal Court to charge of driving while under influence (DUI). Defendant appealed. The Superior Court, Law Division, Bergen County, ordered suppression of blood evidence taken from defendant, and state appealed. The Superior Court, Appellate Division, reversed and remanded, 333 N.J.Super. 247, 755 A.2d 602. On certification, the Supreme Court, Verniero, J., held that; (1) police used unreasonable force in obtaining defendant’s blood sample, and (2) “independent source” doctrine did not apply.

Appellate Division’s decision reversed and remanded.

LaVecchia, J., issued dissenting opinion in which Poritz, C.J., joined.

The opinion of the Court was delivered by


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 **304 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 *232 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 *233 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 **305 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 *234 breath tests and thus is not applicable, State v. Woomer, 196 N.J.Super. 583, 586, 483 A.2d 837 (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, 755 A.2d 602 (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, 755 A.2d 602. The panel cited other authority, including State v. Macuk, 57 N.J. 1, 268 A.2d 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, 755 A.2d 602. The panel also cited Woomer, supra, 196 N.J.Super. at 587, 483 A.2d 837, in which the Appellate Division approved a police officer’s threat of force to *235 obtain a blood sample from an intoxicated driver. Ravotto, supra, 333 N.J.Super. at 255, 755 A.2d 602.

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. **306 Further, such a driver can be restrained in order to extract a blood sample.” Id. at 255-56, 755 A.2d 602. 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, 755 A.2d 602. This Court granted defendant’s petition for certification. 165 N.J. 677, 762 A.2d 657 (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.



[1] [2] 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, 608 A.2d 386 (App.Div.), certif. denied, 130 N.J. 396, 614 A.2d 619 (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. *236 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, 573 A.2d 1376 (1990).

[3] [4] 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, 751 A.2d 92 (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, 627 A.2d 125, 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.

[5] [6] 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’ “).

[7] [8] 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 **307 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.]

*237 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. *238 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.

**308 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, 268 A.2d 1. 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, 268 A.2d 1. 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, 268 A.2d 1. 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, 268 A.2d 1. The Court rejected that claim. Analyzing *239 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, 268 A.2d 1 (citations omitted).]

The Court concluded that the defendant’s breath sample was nontestimonial in character and thus did not violate his Fifth Amendment privilege against self-incrimination. Id. at 14, 268 A.2d 1. See also State v. Blair, 45 N.J. 43, 46, 211 A.2d 196 (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, 388 A.2d 987 (App.Div.1978). In Burns, the police arrested the defendant because of his erratic driving. Id. at 541, 388 A.2d 987. 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.

*240 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 **309 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, 388 A.2d 987. 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, 388 A.2d 987. 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, 483 A.2d 837. 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 force in Burns was dictum and, as such, it did not “contemplate facts such as are presented” in the defendant’s case. Id. at 587, 483 A.2d 837. In dictum of its own, the Woomer court observed:

Indeed, a subject who resists a blood sample can be restrained in a medically acceptable way as could any other uncooperative patient. Here the police properly advised [the defendant] that they were empowered to use force if necessary to secure the blood sample. We disagree with the trial judge’s characterization of *241 this advice as a “threat.” It was not a threat at all, but an accurate statement of fact…. While we might conceive of circumstances in which threats of force or violence are of such an egregious nature as to implicate a due process claim or negatively affect the integrity of the medical environment, that is not the case before us.

[Id. at 586-87, 483 A.2d 837.]

The Woomer court thus held that the police properly may draw blood when they gain a suspect’s submission by a mild threat of force. Previous case law permitted such tests in instances when a suspect submitted without the threat or use of force. Burns, supra, 159 N.J.Super. at 544, 388 A.2d 987. Implied in both Burns and Woomer, however, is the notion that at some level of force or coercion the police conduct in pursuit of a blood sample is impermissible. Similarly, as noted, the Supreme Court in Schmerber suggested that a suspect who objects to a blood test out of fear or who prefers to give a breath sample might be constitutionally entitled to avoid a blood test. Schmerber, supra, 384 U.S. at 771, 86 S.Ct. at 1836, 16 L.Ed.2d at 920.


[9] [10] In applying those tenets, we conclude that the force used by the police to extract defendant’s blood was unreasonable under the totality of the circumstances. Defendant was terrified of needles and voiced his strong objection to the procedures used on him. He shouted and **310 flailed as the nurse drew his blood. Several persons, including the police, and mechanical restraints were needed to hold defendant down. Defendant’s fear is relevant to our analysis. A suspect’s reaction to law enforcement officials is part of the fact pattern considered by a reviewing court when it determines whether police behavior was objectively reasonable. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 576-77 (2000).

[11] We also consider the offense that was under investigation as part of the totality of the circumstances. See Graham, supra, 490 U.S. at 396, 109 S.Ct. at 1872, 104 L.Ed.2d at 455 (explaining that severity of crime at issue is element of test for whether force *242 used by police was reasonable); United States v. Garcia, 450 F.Supp. 1020, 1023 (E.D.N.Y.1978) (observing that gravity of offense is pertinent to determining whether police action was reasonable). Although the Court does not diminish defendant’s suspected offense or in any way condone driving while intoxicated, we note that the charge against defendant is quasi-criminal rather than criminal in nature. State v. Widmaier, 157 N.J. 475, 494, 724 A.2d 241 (1999). Moreover, defendant had been in a one-car accident and was not under suspicion for causing the death of or injury to any other person.

Further, we are guided by the fact that courts do not require proof of blood alcohol levels to convict drunk drivers, and that even without the blood test the police had a strong case against defendant. Defendant had flipped his car, and the police had witnessed his erratic behavior, slurred speech, and glassy eyes, and had smelled alcohol on his breath. In addition, defendant’s misleading call for help from the car had evidenced his impaired state. See State v. Emery, 27 N.J. 348, 355, 142 A.2d 874 (1958) (upholding drunk-driving conviction on direct and circumstantial evidence); State v. Nemesh, 228 N.J.Super. 597, 550 A.2d 757 (App.Div.1988) (concluding that defendant’s statements as well as observations of police and videotape of defendant’s behavior were sufficient to support conviction for driving while intoxicated), certif. denied, 114 N.J. 473, 555 A.2d 600 (1989).

We reiterate that the test of reasonableness is an objective one. Therefore, the fact that the police may have acted with good motives in transporting defendant to the hospital does not “make an objectively unreasonable use of force constitutional.” Graham, supra, 490 U.S. at 397, 109 S.Ct. at 1872, 104 L.Ed.2d at 456. Under Graham, we employ a balancing test to evaluate whether the police conduct impermissibly infringed on defendant’s rights, considering all relevant facts and circumstances. Id. at 396, 109 S.Ct. at 1871, 104 L.Ed.2d at 455. Specifically, we consider defendant’s manifest fear of needles, his violent reaction to the bodily intrusion engendered by the search, and his willingness to *243 take a Breathalyzer test. We then weigh those factors against the State’s interest in prosecuting defendant on a quasi-criminal charge in respect of which there existed considerable proofs apart from the blood evidence. In striking that balance, we are satisfied that the forced extraction of blood in this instance offended the federal and State Constitutions.

Other courts have reasoned similarly. See, e.g., Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir.) (concluding that when suspect agrees to provide equally useful chemical sample, government’s need for evidentiary sample disappears), cert. denied, 525 U.S. 981, 119 S.Ct. 444, 142 L.Ed.2d 399 (1998); Hammer v. Gross, 932 F.2d 842 (9th Cir.) ( en banc ) (upholding, in plurality opinion, jury verdict in favor of **311 plaintiff in 42 U.S.C.A. § 1983 action involving forced blood sample in part because plaintiff had agreed to breath test), cert. denied, 502 U.S. 980, 112 S.Ct. 582, 116 L.Ed.2d 607 (1991). See also People v. Kraft, 3 Cal.App.3d 890, 84 Cal.Rptr. 280 (1970) (holding that forced blood test of defendant exceeded limits of permissible police activity).

Factually, this case resembles State v. Sisler, 114 Ohio App.3d 337, 683 N.E.2d 106 (1995). In Sisler, the police arrested the defendant for driving while intoxicated and brought him to police headquarters. Id. at 108. There, the defendant slipped and injured his head, necessitating a trip to a nearby hospital before he could provide a breath sample for the drunk driving investigation. Ibid. Once at the hospital, the defendant refused to submit to a blood test for the purposes of the police investigation. Ibid. Two police officers, two hospital security officers, a physician, and a nurse held the defendant down so that a sample could be taken. Ibid. After several failed attempts, a blood sample was successfully taken. Ibid.

The trial court admitted the blood sample into evidence, but the appellate court reversed. Ibid. The court held that because the blood sample was taken by a medical professional in a hospital environment, it had been drawn in a medically reasonable manner. Id. at 109. It also held, however, that by the time they sought the *244 blood test, the police had accumulated ample evidence to sustain a conviction against the defendant for driving while intoxicated. Id. at 111. Relying in part on Schmerber, the court concluded that the manner in which the blood was taken by the police violated the defendant’s due process rights and, by extension, his Fourth Amendment rights. Id. at 110-11. The court summarized its holding as follows:

It offends a fundamental sense of justice, at least as this court views that concept, that an accused who has been shackled to a hospital bed is held down by six persons while a seventh jabs at his arm with a needle in order to withdraw his blood at the direction of the state’s officers. Such conduct is beyond that supportable as a measure necessary for effective law enforcement.

[Id. at 111.]

[12] Here, the State urges a contrary conclusion, namely, that we sustain the fruits of the search. It asserts that the police ultimately would have obtained defendant’s test results, free of any constitutional taint, from the hospital itself. Under the “independent source” doctrine, the State is put in the same position in which it would have been had it not committed a constitutional error. Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377, 387 (1984). Accordingly, if the hospital had obtained blood alcohol readings on its own, the police might have acquired those readings in the regular course of their investigation. See State v. Dyal, 97 N.J. 229, 232, 478 A.2d 390 (1984) (holding that police may obtain blood tests of patient by use of subpoena duces tecum ).

Our review of the record persuades us that the independent source doctrine is not applicable. That the hospital staff would have taken a blood test absent the police request is unclear. The police officers and the nurse who took the blood testified that the blood tests had been required by the police for investigative purposes. The nurse testified that he had taken four vials of blood for police purposes, and then “four additional tubes for hospital purposes,” permitting the reasonable inference that the nurse’s primary purpose in taking the sample was to assist the police. To support that inference, defense counsel **312 asked the *245 nurse on cross-examination: “It was your intent to provide … a sample for the law enforcement officers and to assist them in their investigation, is that right?” The nurse replied, “[T]hat is correct.”

Even if the hospital had required its own blood samples for diagnostic purposes, once the State assisted in the forced taking of those samples it could no longer acquire them under the independent source doctrine. State v. Sugar, 100 N.J. 214, 237, 495 A.2d 90 (1985) (explaining how independent source doctrine allows admission of evidence ” ‘that has been discovered by means wholly independent of any constitutional violation’ “) (quoting Williams, supra, 467 U.S. at 443, 104 S.Ct. at 2509, 81 L.Ed.2d at 387). See also Gilbert v. Leach, 62 Mich.App. 722, 233 N.W.2d 840, 843 (1975) (concluding that police officer’s request to medical personnel for blood sample from accused constituted state action within context of exclusionary rule), aff’d sub nom. McNitt v. Citco Drilling Co., 397 Mich. 384, 245 N.W.2d 18 (1976).

In short, we cannot conclude on this record that the hospital staff would have obtained blood samples from an uncooperative but seemingly uninjured driver such as defendant without the request and aid of the police. Stated differently, the record supports a reasonable inference that the medical personnel would have respected defendant’s wishes not to have his blood drawn if he had been free of police supervision. Because of the important rights at stake and in view of the fact that the State has the burden of justifying its actions, we must resolve any doubts in favor of defendant.

Further, as noted, the police apparently made no effort to offer defendant a Breathalyzer test in lieu of the blood test. Although the police are not obligated to favor one test over the other, their failure to explore the possibility of administering the Breathalyzer test is a factor to be considered in our overall reasonableness inquiry. The record suggests that there was no Breathalyzer available at Englewood Hospital, although one was available and in working condition at the Edgewater police headquarters a short *246 distance away. That, in turn, suggests that after the police had secured medical treatment for defendant at the hospital, they might have transported him to police headquarters to administer the Breathalyzer. If defendant’s medical condition had precluded him from being transported safely to police headquarters, a mobile Breathalyzer unit may have been available from a nearby police station for use at the hospital. The record reveals no attempt by the police to locate such a unit for that purpose.

State v. Ravotto continued