NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0793-13T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
July 29, 2014
v.
APPELLATE DIVISION
DONNA JONES,
Defendant-Respondent.
________________________________________________________________
Submitted April 1, 2014 – Decided July 29, 2014
Before Judges Fisher, Espinosa and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
12-06-1643.
Warren W. Faulk, Camden County Prosecutor,
attorney for appellant (Linda A. Shashoua,
Assistant Prosecutor, of counsel and on the
brief).
Law Offices of Michael W. Kahn, P.C., and
Brenner Brenner & Spiller, attorneys for
respondent (Michael W. Kahn and Fletcher C.
Duddy, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
In Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185
L. Ed. 2d 696 (2013), a warrantless blood test was administered
to a driver arrested for driving while intoxicated after a
routine traffic stop. There being no other facts to suggest an
emergency existed, the United States Supreme Court was asked to
decide the broad question "whether the natural metabolization of
alcohol in the bloodstream presents a per se exigency that
justifies an exception to the Fourth Amendment's warrant
requirement for nonconsensual blood testing in all drunk-driving
cases." Id. at ___, 133 S. Ct. at 1556, 185 L. Ed. 2d at 702
(emphasis added). Concluding that fact alone did not present a
"per se exigency," the Supreme Court held, "consistent with
general Fourth Amendment principles, that exigency in this
context must be determined case by case based on the totality of
the circumstances." Ibid.
Prior to the Supreme Court's decision, defendant caused a
multiple vehicle accident, resulting in personal injury to
herself and another that required each of them to be transported
to a hospital. It took emergency personnel approximately thirty
minutes to extricate the unconscious defendant from her vehicle.
The police investigation of the accident scene at a heavily
traveled intersection took several hours. Relying on McNeely,
the trial court suppressed a blood alcohol content (BAC) reading
of .345, the result of a blood test administered without a
warrant. We granted leave to the State to appeal from this
order and, for the reasons that follow, we reverse.
2 A-0793-13T1
I
Defendant was indicted on one count of fourth-degree
assault by auto, N.J.S.A. 2C:12-1(c)(2), and was issued related
summonses for reckless driving, N.J.S.A. 39:4-96, and driving
while intoxicated, N.J.S.A. 39:4-50. She filed a motion to
suppress the results of the blood sample.
Two witnesses testified at the suppression hearing,
Officers James Watts and Anthony Sorrentino of the Cherry Hill
Police Department. The facts elicited at the suppression
hearing can be summarized as follows:
It was dusk at approximately 7:00 p.m. on December 28,
2011, when a three-vehicle crash occurred at the intersection of
Kings Highway, a State highway, and Church Road, a county road
in Cherry Hill. Traffic at this location is heavy during rush
hour conditions. Two automobiles were stopped at a red light on
Kings Highway. Defendant drove her vehicle into the second car
stopped at the light, propelling it into the automobile ahead of
it. Defendant's vehicle continued to strike the second vehicle
before "careening off" across the intersection, where it wedged
up against a cemetery archway. Because the accident involved
injuries, it was a "Code 2" crash in which available police
units are dispatched to the scene. In addition to the eleven
officers who responded, there were at least two Emergency
3 A-0793-13T1
Medical Service (EMS) vehicles and four EMS personnel, two fire
trucks and an unknown number of firefighters at the accident
scene.
Officer Sorrentino was one of the first officers on the
scene, which he described as "very chaotic." Officers Watts and
Sorrentino described the officers' tasks at the scene. Officer
Sorrentino stated,
[W]hen we first responded we had to set up
traffic directions so we had to block off
the vehicles that were damaged. And we had
to set up a system for directing traffic
around the damaged vehicles as well as the
emergency vehicles. Someone had to attend
to the victims in each car and other units
would have attended to any witnesses or
tried to locate any witnesses at the scene.
Several officers were needed to assess the traffic
conditions, the occupants of the three vehicles, and the
situation involving defendant's car. There was a concern that
the building defendant had struck might collapse. Watts
described the officers' objective as "to make sure . . . that
there's nothing else going to happen to make the scene worse."
Defendant was found inside her vehicle, unconscious and
bleeding from her face. The fire department and Emergency
Medical Technicians (EMTs) had to extricate her from her heavily
damaged car, a process that took approximately one-half hour.
As defendant was being removed from the vehicle and placed in
4 A-0793-13T1
the ambulance, the EMTs told Officer Sorrentino that there was
an odor of alcohol on defendant's breath. Because defendant
remained unconscious, no sobriety tests were administered at the
scene. Defendant was taken to the hospital along with an
occupant of one of the other cars who was also injured in the
accident.
Officer Watts, a traffic safety officer, testified that his
assignment is to investigate what are deemed to be potentially
serious or fatal accidents. He was called to investigate the
scene approximately forty-five minutes to one hour after the
accident was reported, arriving after defendant had been taken
to the hospital. He testified it took several hours for the
investigation at the scene to be completed.
Officer Sorrentino went to the hospital to follow up on the
injuries of defendant and the occupant of the other vehicle,
which proved not to be serious. Once defendant regained
consciousness, Officer Sorrentino asked her if she had anything
to drink and she responded that she had at least one beverage.
The record does not reveal for how long defendant was
unconscious. Officer Sorrentino described defendant's speech as
"very slurred." She was unable to answer his questions when he
asked for her address or for a phone contact for a relative.
5 A-0793-13T1
At Officer Sorrentino's request, a nurse drew defendant's
blood at approximately 8:15 p.m. The blood test revealed a BAC
reading of .345.1 Thus, the blood was drawn approximately one
hour and fifteen minutes after police responded to the
automobile accident.
Officer Sorrentino testified that, pursuant to standard
operating procedures at the time, he was not required to obtain
a search warrant. He testified further that he did not receive
his first training in securing telephone warrants until after
the accident. Both Watts and Sorrentino testified that, to
their knowledge, telephone warrants were not available in their
jurisdiction in December 2011.2 As of the time of the
suppression hearing, neither had obtained a telephone warrant.
The suppression hearing in this case was conducted
approximately four months after McNeely was decided. Citing our
Supreme Court's decision in State v. Wessells, 209 N.J. 395,
411-12 (2012), the motion judge observed that McNeely applied to
all cases that were not yet final because the decision
1
The penalties for driving while intoxicated apply to persons
who operate a motor vehicle with a BAC of 0.08% or higher.
N.J.S.A. 39:4-50. Defendant's BAC was more than four times this
amount.
2
On cross-examination, Watts stated he was referring to his own
understanding that a telephone warrant was not needed "for blood
samples at a crash scene."
6 A-0793-13T1
implicated rights guaranteed under the federal Constitution.
The motion judge described the applicable rule as requiring a
warrant for a blood sample unless an exception to the warrant
requirement, such as an exigency, applies. He stated,
[T]he rule in both McNeely and Schmerber [v.
California, 384 U.S. 757, 771-72, 86 S. Ct.
1826, 1836, 16 L. Ed. 2d 908, 920 (1966)] is
that a warrantless blood draw may be taken
from drunk driving suspects based on the
exigency of the dissipation of blood alcohol
evidence where the totality of the
circumstances indicates that the officer did
not have time to obtain a warrant. The
Court in Schmerber found an exigency to
exist while the Court in McNeely affirmed
the Missouri Supreme Court decision finding
none.
The motion judge found both Sorrentino and the other police
witness to be "genuinely credible," and "acted probably in good
faith," which included "ask[ing] the hospital personnel to use a
kit to do a blood draw of the suspect" instead of seeking a
search warrant. He also recognized that while telephonic
warrants were available, it was not the general practice to use
them.
The motion judge found that the officers had a sufficient
legal basis to seek a search warrant when the EMT alerted them
to the odor of alcohol on defendant in light of the
circumstances of the accident. The judge acknowledged eleven
police officers were required in addition to the emergency
7 A-0793-13T1
personnel at the accident scene and that the officers had
"duties to attend to of great importance at the scene and were
attending to them." However, the motion judge concluded that
the State had not established that
under all the circumstances of this case,
this three-car accident with one serious
injury and one minor injury, was such that
all the attention of all the police officers
the entire time they were all there was
required to attend to duties at the scene
such that it would have been impossible for
any one of them to have had the time to call
for a search warrant telephonically.
[Emphasis added.]
The motion judge also stated that, although McNeely and the
caselaw generally discuss the natural metabolization of alcohol
in the bloodstream, he had no evidence before him that showed
in any kind of detail as to precisely what
that problem is, precisely how quickly
alcohol tends to metabolize, what the time
frame is within which the alcohol test must
have been conducted relative to the last
time the person ingested alcohol for some
sort of reasonably fair reading to be
obtained.
Accordingly, defendant's motion to suppress was granted.
In this appeal, the State argues that the motion judge
erred in applying McNeely "retroactively" and in failing to find
an exigency in the circumstances here. Defendant does not
dispute that the procedure here would have passed muster under
the applicable New Jersey precedents. Instead, she contends
8 A-0793-13T1
that New Jersey precedent constituted "bad law," premised upon a
misreading of Schmerber. She submits that the motion judge was
correct in applying McNeely to this case and in concluding there
was no exigency to excuse the failure to obtain a warrant.
In reviewing the denial of a motion to suppress, this court
"must uphold the factual findings underlying the trial court's
decision so long as" there is sufficient and credible support in
the record. State v. Elders, 192 N.J. 224, 243 (2007). The
trial court's legal conclusions, however, are not entitled to
the same deference — "appellate review of legal determinations
is plenary." State v. Handy, 206 N.J. 39, 45 (2011).
In this case, the motion judge concluded that the blood
test results had to be suppressed because the State failed to
show "it would have been impossible" to obtain a warrant. In
addition, he criticized the lack of precise information
regarding the elimination rate for defendant's BAC and
questioned the allocation of police resources at the scene of
the accident. We conclude that the judge erred in his
application of the standard required by McNeely and Schmerber
and that the blood test results should not have been suppressed.
II
In 2011, New Jersey law permitted the police to obtain a
blood sample without first obtaining a warrant, so long as they
9 A-0793-13T1
had probable cause to believe that the driver was intoxicated
and the sample was taken "in a medically acceptable manner at a
hospital or other suitable health care facility," State v. Dyal,
97 N.J. 229, 238 (1984) (citing Schmerber, supra, 384 U.S. at
771-72, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920), and without the
use of excessive force. State v. Ravotto, 169 N.J. 227, 231-33
(2001); see also State v. Adkins, 433 N.J. Super. 479, 482-84
(App. Div. 2013), certif. granted, 217 N.J. 588 (2014).
The following passage in Schmerber provided guidance for
our decisions:
[T]he questions we must decide in this case
are whether the police were justified in
requiring petitioner to submit to the blood
test, and whether the means and procedures
employed in taking his blood respected
relevant Fourth Amendment standards of
reasonableness.
In this case, as will often be true when
charges of driving under the influence of
alcohol are pressed, these questions arise
in the context of an arrest made by an
officer without a warrant. Here, there was
plainly probable cause for the officer to
arrest petitioner and charge him with
driving an automobile while under the
influence of intoxicating liquor. The
police officer who arrived at the scene
shortly after the accident smelled liquor on
petitioner's breath, and testified that
petitioner's eyes were "bloodshot, watery,
sort of a glassy appearance." The officer
saw petitioner again at the hospital, within
two hours of the accident. . . .
. . . .
10 A-0793-13T1
Although the facts which established
probable cause to arrest in this case also
suggested the required relevance and likely
success of a test of petitioner's blood for
alcohol, the question remains whether the
arresting officer was permitted to draw
these inferences himself, or was required
instead to procure a warrant before
proceeding with the test. Search warrants
are ordinarily required for searches of
dwellings, and, absent an emergency, no less
could be required where intrusions into the
human body are concerned. . . .
The officer in the present case, however,
might reasonably have believed that he was
confronted with an emergency, in which the
delay necessary to obtain a warrant, under
the circumstances, threatened "the
destruction of evidence[.]" We are told
that the percentage of alcohol in the blood
begins to diminish shortly after drinking
stops, as the body functions to eliminate it
from the system. Particularly in a case
such as this, where time had to be taken to
bring the accused to a hospital and to
investigate the scene of the accident, there
was no time to seek out a magistrate and
secure a warrant. Given these special
facts, we conclude that the attempt to
secure evidence of blood-alcohol content in
this case was an appropriate incident to
petitioner's arrest.
[Schmerber, supra, 384 U.S. at 768-771, 86
S. Ct. at 1834-36, 16 L. Ed. 2d at 918-20
(emphasis added) (internal citations
omitted).]
In Dyal, supra, our Supreme Court described the "crucial
consideration" in this reasoning:
[T]he body eliminates alcohol at a rapid
rate. The evidence is evanescent and may
11 A-0793-13T1
disappear in a few hours. Investigating
police, while coping with an emergency,
should not be obliged to obtain a search
warrant before seeking an involuntary blood
test of a suspected drunken driver.
[97 N.J. at 239-40 (citing Schmerber, 384
U.S. at 770-71, 86 S. Ct. at 1836, 16 L. Ed.
2d at 919-20).]
Our courts did not stand alone in this interpretation of
Schmerber. The Supreme Court noted that it was deciding McNeely
to resolve a split in federal authority on this issue. Id. at
___, 133 S. Ct. at 1558, 185 L. Ed. 2d at 703; see also 3 Wayne
R. LaFave, Search and Seizure, A Treatise on the Fourth
Amendment, §5.4(b) (5th ed. 2012) and cases cited therein.
It is an ineluctable conclusion that, at the time Officer
Sorrentino requested a blood sample, he had probable cause to
believe that defendant had been driving while intoxicated. The
parties stipulated that the blood sample was obtained in a
medically acceptable manner. It would therefore appear that the
blood sample procedure here complied with New Jersey law at the
time of the accident and defendant has not argued to the
contrary.
We note further that, if the ruling in McNeely had come
from our Supreme Court based upon the protections afforded by
the New Jersey Constitution, the ruling would have marked a
clear departure from New Jersey precedent that would have been
12 A-0793-13T1
limited to prospective application. See State v. Cummings, 184
N.J. 84, 96-99 (2005); see also Adkins, supra, 433 N.J. Super.
at 486.
III
Since McNeely is rooted in the Supreme Court's
interpretation of federal constitutional law, its application
here is governed by the well-established principle that "a new
rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct
review or not yet final, with no exception for cases in which
the new rule constitutes a 'clear break' with the past."
Wessells, supra, 209 N.J. at 412 (quoting Griffith v. Kentucky,
479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661
(1987)). Citing Wessells, defendant argues and the motion judge
found that McNeely must be given "retroactive" application,3 a
3
In Wessells, our Supreme Court addressed the question whether
a defendant's statement to police following his arrest should be
suppressed because the questioning violated a new bright-line
rule subsequently announced by the United States Supreme Court
in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed.
2d 1045 (2010). Wessells, supra, 209 N.J. at 397. In that
case, the United States Supreme Court established fourteen days
as "a break in custody that is of sufficient duration to
dissipate its coercive effects" for renewed interrogation of a
suspect who initially requested counsel. Shatzer, supra, 559
U.S. at 109, 130 S. Ct. at 1222, 175 L. Ed. 2d at 1056. After
reviewing the history of pertinent precedent, the Court observed
that Shatzer represented a "rejection of a totality of the
circumstances approach in favor of a single time period," and
(continued)
13 A-0793-13T1
conclusion rejected by another part of this court.4 For the
purposes of our analysis here, however, we need not determine
whether McNeely should be applied retroactively because we
conclude that the application of McNeely to the facts of this
case does not require the suppression of the results of
defendant's blood test.
The fact that the Supreme Court rejected a per se exigency
rule in McNeely should not be misinterpreted as a retreat from
its recognition that the dissipation of alcohol in the blood
merits considerable weight in a totality of the circumstances
analysis. It must be emphasized that both the Missouri Supreme
(continued)
that the United States Supreme Court's "language of certainty"
was intended to "avoid debate" by creating a bright line rule.
Wessells supra, 209 N.J. at 410. In contrast to Shatzer,
McNeely did not establish a bright line rule but rather, adhered
to a totality of the circumstances approach to the resolution of
challenges to warrantless blood samples taken from suspected
drunk drivers. See McNeely, supra, ___ U.S. at _____, ____, 133
S. Ct. at 1559, 1563-64, 185 L. Ed. 2d at 705, 709-10.
4
In Adkins, we observed that "the United States Supreme Court
will not apply the exclusionary rule as a remedy where the
police conducted a search in good faith reliance on binding
legal precedent in the jurisdiction where the search occurred,"
and that the Court had clarified that retroactive application is
not mandated by a new rule of substantive Fourth Amendment law.
Id. at 484-85 ("[T]he retroactive application of a new rule of
substantive Fourth Amendment law raises the question whether a
suppression remedy applies; it does not answer that question.")
(quoting Davis v. United States, ___ U.S. ___, ___, 131 S. Ct.
2419, 2431, 180 L.Ed. 2d 285, 298-99 (2011)).
14 A-0793-13T1
Court and the United States Supreme Court described the facts in
McNeely as "'unquestionably a routine DWI case' in which no
factors other than the natural dissipation of blood-alcohol
suggested that there was an emergency." McNeely, supra, ___
U.S. at ___, 133 S. Ct. at 1557, 185 L. Ed. 2d at 703 (quoting
State v. McNeely, 358 S.W.3d 65, 74 (Mo. 2012)). There was no
accident; no injured defendant who needed to be extricated from
her heavily damaged car; no other injured person who had to be
transported to the hospital; no concentration of disabled cars
and emergency vehicles at a busy intersection; and no police
investigation beyond the DWI arrest.
Still, the Supreme Court accepted as "true" the immutable
fact that the alcohol level in one's bloodstream begins to
dissipate from the time "the alcohol is fully absorbed and
continues to decline until the alcohol is eliminated." Id. at
____, 133 S. Ct. at 1560, 185 L. Ed. 2d at 706. It is through
this lens that the Supreme Court assessed the totality of the
circumstances.
The Supreme Court discounted the significance of the "exact
elimination rate," finding it "sufficient" to note that "because
an individual’s alcohol level gradually declines soon after he
stops drinking, a significant delay in testing will negatively
affect the probative value of the results." Id. at ___, 133 S.
15 A-0793-13T1
Ct. at 1560-61, 185 L. Ed. 2d at 707 (emphasis added).5 The
Court emphasized this point, stating,
This fact was essential to our holding in
Schmerber, as we recognized that, under the
circumstances, further delay in order to
secure a warrant after the time spent
investigating the scene of the accident and
transporting the injured suspect to the
hospital to receive treatment would have
threatened the destruction of evidence.
[Id. at ____, 133 S. Ct. at 1561, 185 L. Ed.
2d at 707 (emphasis added).]
The salient points to be made here are that the dissipation
of blood alcohol continues to be an "essential" factor in
analyzing the totality of the circumstances; that time spent
investigating an accident and transporting an injured suspect to
the hospital causes delay; that obtaining a warrant will result
in further delay;6 and that such additional delay will "threaten"
5
The Court observed, "More precise calculations of the rate at
which alcohol dissipates depend on various individual
characteristics (such as weight, gender, and alcohol tolerance)
and the circumstances in which the alcohol was consumed." Id.
at ____, 133 S. Ct. at 1560, 185 L. Ed. 2d at 707 (citing
Stripp, Forensic and Clinical Issues in Alcohol Analysis, in
Forensic Chemistry Handbook 437-41 (L. Kobilinsky ed. 2012)).
Since many of these facts, as well as the time a suspect ceased
drinking alcohol, are unlikely to be known to officers arriving
at an accident scene, the Court's dismissal of any need to prove
an "exact elimination rate" is a practical approach to the
analysis.
6
Recognizing that some delay is inevitable, even in a telephone
warrant situation, the Court stated, "We by no means claim that
telecommunications innovations have, will, or should eliminate
(continued)
16 A-0793-13T1
the destruction of evidence. The Supreme Court did not require
the State to show that the "further delay" would substantially
impair the probative value of a blood sample drawn after a
warrant was obtained or that it was impossible to obtain a
warrant before the evidence was dissipated. In short, the Court
did not require proof that evidence would be destroyed; it was
sufficient to show that delays "threatened" its destruction.
It is therefore clear that the motion judge applied a more
stringent test than that required by McNeely. The judge
interpreted McNeely to mean that an exigency is limited to
circumstances where there is no time to obtain a warrant. This
very standard was advocated by Chief Justice Roberts in his
partial dissent. He would have established the following rule:
If there is time to secure a warrant before
blood can be drawn, the police must seek
one. If an officer could reasonably
conclude that there is not sufficient time
to seek and receive a warrant, or he applies
for one but does not receive a response
before blood can be drawn, a warrantless
blood draw may ensue.
[McNeely, supra, ____ U.S. at _____, 133 S.
Ct. at 1573, 185 L. Ed. 2d at 752 (Roberts,
C.J., concurring and dissenting).]
(continued)
all delay from the warrant-application process." Id. at ___,
133 S. Ct. at 1562, 185 L. Ed. 2d at 709.
17 A-0793-13T1
The Supreme Court explicitly declined to adopt the Chief
Justice's "modified per se rule," favoring instead the
"traditional totality of the circumstances analysis." Id. at
_____, 133 S. Ct. at 1563, 185 L. Ed. 2d at 710. Of particular
importance to an analysis of the facts here, McNeely described
the special facts considered in the Schmerber Court's analysis
which, the Court agreed, were sufficient to support a
warrantless blood test:
[T]he petitioner had suffered injuries in an
automobile accident and was taken to the
hospital. While he was there receiving
treatment, a police officer arrested the
petitioner for driving while under the
influence of alcohol and ordered a blood
test over his objection. . . . [W]e
concluded that the warrantless blood test
"in the present case" was nonetheless
permissible because the officer "might
reasonably have believed that he was
confronted with an emergency, in which the
delay necessary to obtain a warrant, under
the circumstances, threatened ‘the
destruction of evidence.'"
In support of that conclusion, we observed
that evidence could have been lost because
"the percentage of alcohol in the blood
begins to diminish shortly after drinking
stops, as the body functions to eliminate it
from the system." We added that
"[p]articularly in a case such as this,
where time had to be taken to bring the
accused to a hospital and to investigate the
scene of the accident, there was no time to
seek out a magistrate and secure a warrant."
"Given these special facts," we found that
it was appropriate for the police to act
without a warrant.
18 A-0793-13T1
[McNeely, supra, ___ U.S. at ____, 133 S. Ct.
at 1559-60, 185 L. Ed. 2d at 705-06 (emphasis
added) (internal citations omitted).]
The Court described the analysis in Schmerber as "fit[ting]
comfortably within our case law applying the exigent
circumstances exception." Id. at ____, 133 S. Ct. at 1560, 185
L. Ed. 2d at 706. Notably, the Court did not dissect precisely
how much time was used to take the accused to the hospital or
required to investigate the scene of the accident, and it did
not evaluate in hindsight whether the officers on the scene
allocated their resources efficiently.
In sum, the "special facts" that supported a warrantless
blood sample in Schmerber and were absent in McNeely, were
present in this case: an accident, injuries requiring
hospitalization, and an hours-long police investigation.
Therefore, it was not necessary for the officers to shoulder the
further delay entailed in securing a warrant that would have
threatened the destruction of the blood alcohol evidence.
Defendant's suppression motion should have been denied.
Reversed.
19 A-0793-13T1