This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A12-2135
State of Minnesota,
Respondent,
vs.
Dean James Roehler,
Appellant.
Filed April 4, 2016
Affirmed
Stauber, Judge
Hubbard County District Court
File No. 29-CR-11-1414
William Ward, State Public Defender, Richard A. Schmitz, Assistant Public Defender,
St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul,
Minnesota; and
Donovan D. Dearstyne, Hubbard County Attorney, Park Rapids, Minnesota (for
respondent)
Considered and decided by Cleary, Chief Judge; Stauber, Judge; and Kirk, Judge.
UNPUBLISHED OPINION
STAUBER, Judge
This matter is before us on remand from the Minnesota Supreme Court, which
directed this court to reconsider our earlier decision in light of the supreme court’s
decisions in State v. Stavish, 868 N.W.2d 670 (Minn. 2015), and State v. Lindquist, 869
N.W.2d 863 (Minn. 2015). We affirm.
FACTS
On July 14, 2011, at about 5:15 p.m., appellant Dean Roehler was involved in a
head-on car collision. Roehler’s car crossed over the centerline of Highway 34 and
collided with a van traveling in the opposite direction, killing the van driver and injuring
two passengers, the driver’s daughter-in-law and grandchild. Roehler was also seriously
injured; he was unconscious, and emergency personnel worked for 45 minutes to extract
him from his car.
Minnesota State Trooper Nick Tabbert assisted at the scene of the accident.
Roehler was placed in an ambulance for transport to the nearest airport to be airlifted to
Essentia Health Hospital in Fargo, North Dakota. In the ambulance, Tabbert smelled an
odor of alcohol and asked the flight nurse to draw a blood sample for alcohol-
concentration testing, although he did not have a warrant authorizing the blood draw.
This blood sample was drawn about 6:31 p.m. or a little more than one hour after the
accident. The blood was drawn near an intravenous (IV) line that was also being used to
give Roehler fluids, and Tabbert could tell that the sample was diluted. Tabbert
contacted Minnesota State Trooper Mark Herbranson and directed him to go to the Fargo
hospital and obtain another blood sample from Roehler.
After arriving at the hospital, emergency room staff drew a blood sample for
medical purposes at approximately 8:07 p.m. The state subsequently obtained a search
warrant for the results of this blood sample, which showed that Roehler had a blood-
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alcohol concentration (BAC) of 0.086. The record does not indicate that Herbranson was
aware of this blood draw.
Herbranson obtained a third blood sample at the hospital at 8:58 p.m., but he did
not obtain a warrant before doing so. Roehler was in radiology shortly before going into
surgery when an emergency room nurse used the state patrol blood draw kit to take the
sample. Herbranson could not identify Roehler at trial because he was “wrapped up
pretty bad . . . on the cart, and . . . he was basically critical at the time.” Roehler regained
consciousness two days later and remained in the hospital for 23 days.
Roehler was charged with eleven criminal counts, including three counts of
criminal vehicular homicide, six counts of criminal vehicular operation, and two counts
of driving while impaired (DWI). At trial, Donna Zittel, a forensic toxicology specialist
at the Bureau of Criminal Apprehension (BCA) crime lab, testified that both the 6:31
p.m. blood draw and the 8:58 p.m. blood draw showed a BAC of 0.05., but she also
testified that, in general, a blood draw near an IV site is not accurate because it includes
fluids entering the patient’s arm from the IV. She noted that because the 6:31 p.m. blood
draw may have been diluted, the sample was not valid for use in reverse extrapolation to
determine Roehler’s BAC at the time of the accident. Instead, Zittel used the 8:58 p.m.
blood draw to extrapolate back to the time of the accident, taking into account the
average burn-off rate of alcohol. She concluded that Roehler likely had a BAC of
between 0.08 and 0.14 at the time of the accident. Zittel also testified that the rate at
which alcohol diminishes in the blood is not affected by drugs or trauma.
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Two witnesses testified that they smelled alcohol on Roehler after the accident,
and an accident-reconstruction expert testified that the accident was caused by human
error and not by a mechanical defect or other cause. Roehler denied having more than
two or three beers during the day. He remembered nothing from a point shortly before
the accident until he awoke in the hospital two days later.
Roehler was convicted by a jury of all eleven criminal counts. He appealed his
convictions, but while his direct appeal was pending, the United States Supreme Court
issued its opinion in Missouri v. McNeely, 133 S. Ct. 1552 (2013). In that opinion, the
Supreme Court ruled that dissipation of alcohol in the blood does not constitute a per se
exigency that permits a warrantless nonconsensual blood draw that would otherwise
violate the Fourth Amendment, and that exigency must be decided on a case-by-case
basis with reference to the totality of the circumstances. Id. at 1568. Roehler moved to
stay his appeal pending a postconviction proceeding in the district court. The district
court denied the postconviction petition, and Roehler’s direct appeal was reinstated,
including issues determined in the postconviction proceeding. This court reversed
Roehler’s convictions because of the warrantless blood draw and remanded the matter to
the district court for a new trial, but declined to consider Roehler’s ineffective-assistance-
of-counsel claim based on counsel’s failure to challenge admission of the medical blood
draw on grounds of physician/patient privilege.
The state petitioned for further review, alleging that the warrantless blood draw
was lawful under the Fourth Amendment because it was based on “the totality of exigent
circumstances,” and that “the good faith exception to the exclusionary rule nevertheless
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support[s] admission of the evidence obtained from the warrantless blood draws.” The
supreme court stayed review, “pending final disposition in State v. Stavish. . . and State v.
Lindquist.”
On August 19, 2015, the supreme court issued opinions in Lindquist and Stavish.
The supreme court vacated this court’s decision in Roehler and remanded with the
directive to this court “to consider the application of Stavish and Lindquist to this appeal,
and if necessary, any additional issues that respondent raised in his appeal that were not
addressed in the court of appeals’ decision of October 6, 2014.” Roehler raised two
issues in his appeal: (1) whether the warrantless blood draw was unlawful under Missouri
v. McNeely and (2) whether he was deprived of his right to a fair trial through ineffective
assistance of counsel.
DECISION
I.
In McNeely, the United States Supreme Court held that the evanescent nature of
alcohol in the blood did not provide a single-factor exigency exception to the search-
warrant requirement for nonconsensual blood testing in drunk-driving cases. 133 S. Ct.
at 1568. This was a departure from established precedent; previously, the Supreme Court
held that a nonconsensual blood draw was a reasonable search that could be made
without a warrant because the rapid dissipation of alcohol created an exigent
circumstance that provided an exception to the warrant requirement. Schmerber v.
California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 1835-36 (1966). The Minnesota
Supreme Court approved this reasoning in State v. Shriner, permitting a warrantless,
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nonconsensual blood draw when a police officer had probable cause to believe that the
defendant committed criminal vehicular homicide. 751 N.W.2d 538, 549-50 (Minn.
2008). Thus, at the time of Roehler’s accident, the binding appellate precedent of
Schmerber and Shriner permitted a warrantless blood draw in an accident involving
suspected criminal vehicular homicide.
In its recent opinion in Lindquist, the Minnesota Supreme Court recognized a
narrow good-faith exception to the warrant requirement when a police officer “acts in
objectively reasonable reliance on binding appellate precedent” and “the binding
precedent . . . specifically authorize[s] the behavior.” 869 N.W.2d at 877. Roehler’s
accident occurred before the Supreme Court issued the McNeely opinion, and, therefore,
the troopers here were acting on the binding appellate precedent of Schmerber and
Shriner, which specifically authorized a warrantless blood draw in an accident involving
suspected criminal vehicular homicide.1
Although in Lindquist law enforcement attempted to obtain a blood draw within
the two-hour statutory period set forth in Minn. Stat. § 609.21 (2012) and Minn. Stat.
§ 169A.20, subd. 1(5) (2012) (stating that a person who operates a motor vehicle with a
BAC of 0.08 or greater within two hours of the time driving is guilty of criminal
vehicular homicide or DWI), neither statute requires testing within two hours. Section
609.21 provides that a person is guilty of criminal vehicular homicide if he operates a
1
We note that application for a warrant from a North Dakota judge may have confronted
Herbranson, a Minnesota state trooper, with a more time-consuming task, contributing to
a good-faith belief in the existence of exigent circumstances.
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motor vehicle “while having an alcohol concentration of 0.08 or more” or “while having
an alcohol concentration of 0.08 or more, as measured within two hours of the time of
driving.” Section 169A.20, subdivision 1(5), provides that a person is guilty of driving
while impaired if “the person’s alcohol concentration at the time, or as measured within
two hours of the time, of driving . . . is 0.08 or more.” (Emphasis added). A test is not
invalid if taken outside of the two-hour window of time; rather, extrapolation by an
expert is required to correlate the results of the test with driving conduct that occurred
more than two hours before the test was administered. See State v. Banken, 690 N.W.2d
367, 372 (Minn. App. 2004) (concluding that test taken more than two hours after driving
can be used as proof that a driver’s BAC was greater than 0.08 at the time of driving); see
also Minn. Stat. § 169A.45, subd. 4 (2010) (describing tests taken more than two hours
after the alleged violation as “competent evidence”). Zittel testified at trial that Roehler’s
alcohol concentration exceeded 0.08 at the time of driving, by extrapolating from the
8:58 p.m. blood test drawn at Herbranson’s request. In McNeely, the U.S. Supreme Court
reasoned that the evanescent nature of alcohol did not create an exigent circumstance
precisely because an expert could determine alcohol concentration by extrapolation. 133
S. Ct. at 1561-63. Despite the factual differences between this case and Lindquist, we
nevertheless conclude that law enforcement was acting under the limited good-faith
exception set forth in Lindquist, and the warrantless blood draw taken from Roehler at the
hospital was lawful.
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II.
The supreme court also directed us to consider its decision in Stavish. There, the
defendant was seriously injured and his passenger was killed in a one-car rollover
accident. 868 N.W.2d at 672. The defendant was transported to a hospital for treatment.
Id. at 673. Investigators concluded that alcohol may have been a factor in the accident,
and a police officer was sent to the hospital where the defendant was being treated by
“multiple medical personnel.” Id. Stavish admitted that he had been drinking; therefore,
the police officer directed the emergency room nurse to draw a blood sample, which
showed a BAC of 0.20. Id. The officer had not attempted to seek a warrant because he
believed that under existing law he had the authority to get a blood test, wanted to obtain
the sample within the two-hour statutory period, and thought it was possible that the
defendant would be airlifted to a trauma center, although he did not ask hospital staff if
this was planned. Id.
Stavish was charged with multiple criminal counts of alcohol and driving-related
offenses, and he moved pretrial to suppress the warrantless blood-draw results, citing
McNeely, which had been decided in the interim between the accident and the omnibus
hearing. Id. at 672-73. The district court suppressed the results, but this court reversed,
“concluding that the State established exigent circumstances that justified the warrantless
search.” Id. at 672. On review, the supreme court affirmed this court, concluding that
the totality of the circumstances supported a finding of exigency. Id.
The supreme court listed the following as circumstances supporting exigency:
(1) there was a single-car accident involving a fatality; (2) the driver was seriously
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injured; (3) the driver, who had been transported to the hospital, might be airlifted to
another hospital; (4) alcohol was involved in the accident; (5) multiple medical personnel
were attending to the driver; (6) the officer did not know how long the driver would be at
the hospital or whether “further medical care would preclude obtaining a sample”;
(7) federal and state privacy laws limited the amount of information the officer could
discover about the driver’s medical condition; and (8) the officer was attempting to get a
blood sample within the statutory two-hour period. Id. at 677-79. Each one of these
circumstances was present here, except the last: Roehler’s blood draw occurred outside of
the statutory two-hour period.
In Stavish, the supreme court discounted the argument that the officer did not even
attempt to obtain a telephone warrant or establish how long it would have taken to get a
warrant, writing that “the seriousness and uncertainty of Stavish’s condition, coupled
with the possibility of transport to another hospital, made it impossible for [the officer] to
know how long Stavish would be available for a blood draw.” Id. at 679-80. The
supreme court concluded that the officer “was faced with an emergency situation in
which it was reasonable to conclude that any delay necessary to obtain a warrant would
‘significantly undermin[e] the efficacy of the search.’” Id. at 680 (quoting McNeely, 133
S. Ct. at 1561).
We review the district court’s findings for clear error and its ultimate conclusion
about whether there were exigent circumstances de novo. Id. at 677. Here, the
postconviction court made findings similar to those in Stavish; although Roehler was not
facing transport to another hospital, he was scheduled to go into surgery, which would
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have made him unavailable for a blood draw. These findings are supported by the record
and are not clearly erroneous. We conclude that, based on the totality of the
circumstances, exigent circumstances existed that excused the search-warrant
requirement.
III.
Because this court reversed Roehler’s conviction on the search-warrant issue, we
did not address his claim of ineffective assistance of counsel. Both parties rely on their
original briefs for analysis of this issue. Roehler argues that his trial counsel’s
representation was ineffective because he failed to object to admission of the medical
blood-draw results on grounds of physician/patient privilege.
Ineffective-assistance-of-counsel claims are reviewed under a two-pronged test.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To sustain a claim of
ineffective assistance of counsel, a defendant must show that “(1) his counsel’s
performance fell below an objective standard of reasonableness, and (2) that a reasonable
probability exists that the outcome would have been different but for counsel’s errors.”
Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). An appellate court reviews an
ineffective-assistance-of-counsel claim de novo, as a mixed question of fact and law.
State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). A reviewing court need not address
both test prongs if one is dispositive. Andersen, 830 N.W.2d at 10. There is a
presumption that counsel’s performance is reasonable and questions of strategy are
generally not reviewed. Id. But counsel’s trial strategy must be objectively reasonable.
State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013). If counsel fails to investigate facts
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directly related to the defendant’s theory of the case, his representation may be
ineffective. Id.
Roehler’s counsel objected at the omnibus hearing to admission of all three blood
tests. Counsel objected to the first and third blood tests for foundational reasons: the
information appeared inaccurate or incomplete and the proponent of the test results was
not qualified as a witness. He objected to the medical blood draw because “by its own
terms, [it] is not to be used for legal purposes,” and challenged the procedures used. This
objection falls short of a claim of physician/patient privilege.
During the postconviction hearing, Roehler’s counsel was questioned about the
failure to object. He stated, “I did not consider the medical privilege objection [at trial]
simply because of the fact that there was . . . the other test taken by the state trooper at the
hospital. And that had been deemed admissible by the Court at the omnibus hearing.”
He stated that if the other two tests had been suppressed, he “[a]bsolutely” would have
raised medical privilege, but he decided to let the medical results come into evidence at
trial because he thought that an argument about endogenous production of alcohol, “that
is what happens with people when they’re injured seriously, whether or not it produces
ethanol within the body, was about the only good shot left of getting something so that
we could argue . . . they didn’t have evidence beyond a reasonable doubt.” He also
wanted the medical reports in evidence to show how seriously Roehler was injured, “thus
giving . . . the possibility of the jury giving some thought to the endogenous production
of ethanol.”
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Based on trial counsel’s testimony, (1) he was aware of the existence of
physician/patient privilege; (2) he would have raised the privilege if the other two blood
tests were suppressed; and (3) he ultimately wanted Roehler’s complete medical records
received in evidence so that he could argue a certain theory of the case. Thus, because
Roehler’s counsel’s decisions were strategic and objectively reasonable, they do not
support an ineffective-assistance-of-counsel claim.
Affirmed.
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