NOT FOR PUBLICATION WITHOUT THE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,
June 23, 2015
v. APPELLATE DIVISION
DONNA JONES,
Defendant-Respondent.
________________________________________________________________
Submitted April 1, 2014 - Decided July 29, 2014
Remanded by Supreme Court May 12, 2015
Resubmitted May 12, 2015 - Decided June 23, 2015
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 Office 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), the United States Supreme Court considered
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.
In this case, we granted leave to the State to appeal from
an order that suppressed the results obtained from a blood sample
taken from a drunk driving suspect without a warrant. The facts
of the case are set forth in our opinion. State v. Jones, 437
N.J. Super. 68 (App. Div. 2014).
At the time of our decision, our Supreme Court had not yet
determined whether the rule announced in McNeely would be enforced
retroactively in New Jersey. Although another panel of this court
had determined that McNeely should not be applied retroactively,
State v. Adkins, 433 N.J. Super. 479, 484-85 (App. Div. 2013),
rev'd and remanded, ___ N.J. ___ (2015), we found it unnecessary
for us to determine the retroactivity issue. Jones, supra, 437
N.J. Super. at 77-78. We reviewed the United States Supreme
Court's analysis in McNeely and discussion of its holding in
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Schmerber v. California, 384 U.S. 757, 771-72, 86 S. Ct. 1826,
1836, 16 L. Ed. 2d 908, 920 (1966) and concluded "the application
of McNeely to the facts of this case" did not warrant the
suppression of the blood test results. Jones, supra, 437 N.J.
Super. at 75-78.
We found McNeely's discussion of the proper weight to be
given to dissipation of alcohol instructive.
[T]he 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 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).]
[Id. at 78-79.]
We further reviewed McNeely's description of
the special facts considered in the Schmerber
Court's analysis which, the [McNeely] Court
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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.
[Id. at 80 (quoting McNeely, supra,
___ U.S. at ___, 133 S. Ct. at 1559-
60, 185 L. Ed. 2d at 705-06)
(internal citations omitted).]
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We described the "salient points" to be applied to our
analysis:
[T]he 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; and that such additional delay
will "threaten" 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.
[Id. at 79.]
We concluded:
[T]he "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.
[Id. at 81.]
Thereafter, our Supreme Court reversed the Appellate Division
decision in Adkins, supra, and held that the McNeely totality of
the circumstances analysis would be given pipeline retroactivity
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to all blood draws from suspected drunk drivers. State v. Adkins,
___ N.J. ___, ___ (2015) (slip. op. at 26). The Court held
further:
[L]aw enforcement should be permitted on
remand in these pipeline cases to present to
the court their basis for believing that
exigency was present in the facts surrounding
the evidence's potential dissipation and
police response under the circumstances to the
events involved in the arrest. Further, the
exigency in these circumstances should be
assessed in a manner that permits the court
to ascribe substantial weight to the perceived
dissipation that an officer reasonably faced.
Reasonableness of officers must be assessed
in light of the existence of the McNeely
opinion. But, in reexamining pipeline cases
when police may have believed that they did
not have to evaluate whether a warrant could
be obtained, based on prior guidance from our
Court that did not dwell on such an
obligation, we direct reviewing courts to
focus on the objective exigency of the
circumstances that the officer faced in the
situation.
[Id. at 32.]
In the interim, defendant filed a motion in the Supreme Court
for leave to appeal from our decision as within time. Following
its decision in Adkins, the Court summarily remanded this appeal
to us for reconsideration in light of Adkins.
We have reviewed the facts of this case in light of Adkins
to determine whether the situation faced by the officer presented
an "objective exigency." As we noted in our earlier opinion, this
was not a routine motor vehicle stop. The exigency of the
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circumstances did not depend solely upon the fact that alcohol
dissipates in the blood. Defendant drove her vehicle into a car
stopped at a traffic light, propelling it into a third car in
front of it at approximately 7:00 p.m. at a busy intersection.
Jones, supra, 437 N.J. Super. at 71. Eleven police officers, at
least two Emergency Medical Service (EMS) vehicles and four EMS
personnel, two fire trucks and an unknown number of firefighters
responded to the accident scene. Ibid. Defendant was in her
vehicle unconscious and bleeding. Ibid. It took approximately
one-half hour to extricate her from her heavily damaged car. Ibid.
Both defendant and an occupant from one of the other vehicles, who
was injured in the accident, were taken to the hospital for
treatment. Id. at 72. Defendant did not regain consciousness
until she was at the hospital. Ibid. The investigation at the
accident scene took several hours. Ibid. The damage caused to a
nearby building struck by defendant after hitting the vehicle
raised a concern that the building might collapse. Id. at 71.
The blood sample from defendant was drawn by a nurse approximately
one hour and fifteen minutes after police responded to the accident
scene and, upon testing, had a blood alcohol content of 0.345.
Id. at 72.
Viewing the circumstances here objectively, we are satisfied
the officer "might reasonably have believed that he was confronted
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with an emergency, in which the delay necessary to obtain a
warrant, under the circumstances, threatened 'the destruction of
evidence[.]'" Schmerber, supra, 384 U.S. at 770, 86 S. Ct. at
1835, 16 L. Ed. 2d at 919-20 (citation omitted). Under the
totality of the circumstances analysis required by Adkins, we find
no reason to disturb our prior decision reversing the order that
suppressed the results of the blood sample analysis.
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