NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3737-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAWN M. MILKOSKY,
Defendant-Appellant,
___________________________________
Submitted May 23, 2017 – Decided June 8, 2017
Before Judges Fisher and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County, Municipal
Appeal No. 15-049.
Michael A. Grasso, attorney for appellant
(Christopher J. Grenda, on the briefs).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Paula Jordao,
Assistant Prosecutor, on the brief).
PER CURIAM
Following the denial of defendant Dawn M. Milkosky's motion
to suppress the results of a blood alcohol test, she entered a
conditional plea of guilty to driving while intoxicated (DWI),
N.J.S.A. 39:4-50, in the Kinnelon Municipal Court. See R. 7:5-
2(c)(2); State v. Greeley, 178 N.J. 38, 50-51 (2003). She appealed,
and the Law Division, after conducting a de novo hearing, entered
an order denying her suppression motion. Defendant appeals the
court's order. We affirm.
I.
The evidence presented at the suppression hearing showed that
at about 6:15 p.m. on April 16, 2015, defendant was involved in a
single vehicle accident. Defendant's vehicle was overturned and
there was a small fire in the front of the vehicle. Defendant was
unconscious and, secured by her seatbelt, she hung upside down in
the driver's seat. Kinnelon police officers, who were dispatched
to the scene, pulled defendant from the vehicle just prior to it
being engulfed in flames.
Defendant remained unconscious and had a faint pulse. The
officers administered first aid and detected an odor of alcohol
coming from defendant. Within fifteen to twenty minutes of the
accident, defendant was transported by helicopter to Morristown
Memorial Hospital.
The road where the accident occurred was closed for several
hours. The local fire department and members of the sheriff's
department also responded.
Kinnelon police detective Patrick McDonnell was on duty. He
was assigned to block-off the road where the accident occurred and
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direct traffic. At some point, McDonnell was dispatched to the
hospital to obtain a sample of defendant's blood.
McDonnell testified at the suppression hearing that defendant
was conscious when he met with her at the hospital. McDonnell
introduced himself as a detective with the Kinnelon police
department. He asked defendant for her name, date of birth, social
security number, and address, and she provided the information.
Defendant did not remember how the crash occurred or how she had
arrived at the hospital. She inquired about her vehicle, and
McDonnell said it was most likely destroyed by fire.
McDonnell testified that defendant explained that at the time
of the accident, she was driving to a friend's house. She asked
McDonnell to notify her friend about the accident, and provided
McDonnell with her friend's name, address, and phone number. The
information defendant provided was accurate; at some point,
McDonnell called and spoke to the friend.
During McDonnell's conversation with defendant, he again
informed her that he was a Kinnelon police detective. He asked if
she would consent to provide a blood sample, and informed her she
had the option of saying yes or no. In response, defendant said
"yes" and lifted up her arm toward McDonnell. He provided defendant
with a consent form, which she signed with a "squiggly line" above
the signature line.
3 A-3737-15T3
According to McDonnell, defendant's blood was drawn at 8:30
p.m. McDonnell did not believe he had time to obtain a warrant
because the police had "very little manpower and it would take too
long." He testified he would have had to call the prosecutor's
office to obtain a warrant. He did not attempt to obtain a warrant
because, he "had [defendant's] consent and . . . time had passed
and it would have taken a very long time to get the warrant [based
on his] past experiences."
Dr. Gooberman, an internist, testified that defendant
sustained a head injury, and had short-term memory loss. He
testified defendant was given fluids upon her arrival at the
hospital, but was not given any "mood altering drugs."1
Defendant was charged with driving while intoxicated,
N.J.S.A. 39:4-50, and other motor vehicle offenses. She filed a
motion to suppress the results of the blood test, claiming the
warrantless blood draw violated her right to be free from
unreasonable searches and seizures under the United States and New
Jersey Constitutions. The municipal judge denied defendant's
1
Gooberman also testified short-term memory loss "impacts the
ability to give [] consent." However, he did not provide any
support for his conclusion, and the court ruled Gooberman was
qualified to testify only as a general medical doctor, and could
not testify whether defendant "was of sound mind while rendering
her consent." The judge's ruling is not challenged on appeal and,
as such, we do not address it.
4 A-3737-15T3
motion to suppress. Defendant entered a conditional plea of guilty
to driving while intoxicated, and the remaining charges were
dismissed.
Defendant appealed to the Law Division. The court found
defendant consented to the blood draw, and the warrantless blood
draw was otherwise constitutional under the exigent circumstances
exception to the warrant requirement. The Law Division entered an
order denying defendant's suppression motion. This appeal
followed.
On appeal, defendant makes the following arguments:
POINT I
THE WARRANTLESS BLOOD DRAW WAS NOT OBTAINED
THROUGH CONSENT AND THE STATE CANNOT OVERCOME
THE WARRANT REQUIREMENT THROUGH EXIGENCY [].
POINT II
EXCLUSION OF [DEFENDANT'S] BLOOD TEST RESULTS
IS REQUIRED BECAUSE THE BLOOD DRAW WAS NOT
DONE WITHIN A REASONABLE TIME OF HER OPERATION
OF THE MOTOR VEHICLE (Raised Below, However,
Not Addressed in Lower Rulings).
II.
In our review of the Law Division's decision on a municipal
appeal, "[w]e review the action of the Law Division, not the
municipal court." State v. Robertson, 438 N.J. Super. 47, 64 (App.
Div. 2014), certif. granted, 221 N.J. 287 (2015). "Unlike the Law
Division, which conducts a trial de novo on the record, Rule 3:32-
5 A-3737-15T3
8(a), we do not independently assess the evidence." State v.
Gibson, 429 N.J. Super. 456, 463 (App. Div. 2013), rev'd on other
grounds, 219 N.J. 227 (2014). We consider "whether the findings
made could reasonably have been reached on sufficient credible
evidence present in the record." State v. Stas, 212 N.J. 37, 49
(2012) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).
However, we owe "no such deference . . . to the Law Division or
the municipal court with respect to legal determinations or
conclusions reached on the basis of the facts." Ibid.; see also
State v. Handy, 206 N.J. 39, 45 (2011) ("appellate review of legal
determinations is plenary").
Defendant contends the court erred because there was
insufficient evidence supporting its determination she consented
to the blood draw. Defendant argues the "indisputable facts
indicate that [she] was suffering from a lack of lucidity that
prevented her from having the ability to legally provide consent."
We disagree.
The United States and New Jersey Constitutions guarantee
"[t]he right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures."
U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "As the United
States Supreme Court has recognized, 'a "compelled intrusio[n]
into the body for blood to be analyzed for alcohol content" must
6 A-3737-15T3
be deemed a Fourth Amendment search.'" State v. Adkins, 221 N.J.
300, 309 (2015) (quoting Skinner v. Ry. Labor Execs. Ass'n, 489
U.S. 602, 616, 109 S. Ct. 1402, 1412, 103 L. Ed. 2d 639, 659
(1989)).
"Any warrantless search is prima facie invalid, and the
invalidity may be overcome only if the search falls within one of
the specific exceptions created by the United States Supreme
Court." State v. Hill, 115 N.J. 169, 173 (1989). The State has the
burden of proving the existence of an exception by a preponderance
of the evidence. State v. Amelio, 197 N.J. 207, 211 (2008), cert.
denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).
"Federal and New Jersey courts recognize the consent to search
exception to the warrant requirement." State v. Lamb, 218 N.J.
300, 315 (2014). "It is, of course, fundamental that consent to
search must be voluntary." State v. Chapman, 332 N.J. Super. 452,
466 (App. Div. 2000). "To determine whether a person voluntarily
consented to a search, the focus of the analysis is 'whether a
person has knowingly waived [the] right to refuse to consent to
the search.'" Lamb, supra, 218 N.J. at 315 (quoting State v.
Domicz, 188 N.J. 285, 308 (2006)). In addition, "under the New
Jersey Constitution, a consent to search is valid only if the
person giving consent has knowledge of [the] right to refuse."
Chapman, supra, 332 N.J. Super. at 466. "The State has the burden
7 A-3737-15T3
of proving consent was given freely and voluntarily." Lamb, supra,
218 N.J. at 315.
Here, defendant contends the evidence requires the conclusion
that, due to injuries sustained in the accident, she was incapable
of providing voluntary consent to the requested blood draw. We
find no support in the record for defendant's contention and are
satisfied the record amply supports the court's determination that
defendant voluntarily and knowingly consented to the blood draw.
She spoke coherently with the officer, correctly provided detailed
and accurate information, explained what she had been doing prior
to the accident, and expressed concern about her vehicle. She
responded affirmatively to McDonnell's request for the blood draw,
signed the consent form, and extended her arm towards the officer.
See Birchfield v. North Dakota, __ U.S. __, 136 S. Ct. 2160, 2185,
195 L. Ed. 2d 560, 588 (2016) ("It is well established that a
search is reasonable when the subject consents . . . and that
sometimes consent to a search need not be express but may be fairly
inferred from context.") (citations omitted).
Moreover, there was no evidence demonstrating that any injury
sustained by defendant actually interfered with her ability to
understand her rights, or knowingly and voluntarily waive them.
Gooberman testified defendant sustained a moderate sized left
super orbital subcutaneous hematoma, but offered no opinion that
8 A-3737-15T3
the injury affected defendant's ability to provide consent.
Gooberman testified plaintiff suffered short-term memory loss that
"impact[ed] . . . the ability to give . . . consent." He did not,
however, testify the injury rendered her unable to provide knowing
and voluntary consent to McDonnell's blood draw request.
We therefore discern no basis in the record to reverse the
court's finding that, despite defendant suffering some injury in
the accident, she knowingly and voluntarily consented to the blood
draw. See State v. Warmbrun, 277 N.J. Super. 51, 64 (App. Div.
1994) (finding the defendant voluntarily waived his Miranda2 rights
where "although defendant was very intoxicated, he was capable of
communicating and . . . was responsive in answering questions and
could answer correctly questions such as his name, age, etc."),
certif. denied, 140 N.J. 277 (1995).3
Defendant also argues the court erred by denying the
suppression motion because the blood draw did not take place within
a reasonable time. We find insufficient merit in the argument to
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
3
Because we are convinced the court correctly determined that
defendant knowingly and voluntarily consented to the blood draw,
it is unnecessary to consider defendant's argument the court erred
by finding the blood draw was lawful under the exigent
circumstances exception to the warrant requirement.
9 A-3737-15T3
warrant discussion in a written opinion, R. 2:11-3(e)(2), other
to note the following.
Defendant relies on State v. Tischio, 107 N.J. 504, 506
(1987), app. dism., 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d
855 (1988), where the Court determined that a defendant may be
convicted of driving while intoxicated under N.J.S.A. 39:4-50 when
a chemical breath test "is administered within a reasonable time
after the defendant was actually driving [the] vehicle" shows a
blood alcohol level exceeding the statutory limit.4 See also State
v. Marquez, 202 N.J. 485, 511 (2010) ("[B]ecause breath sample
evidence 'is evanescent and may disappear in a few hours,' police
must administer the breathalyzer test within a reasonable time
after the arrest in order to obtain an accurate reading") (quoting
State v. Widmaier, 157 N.J. 475, 487 (1999)).
In State v. Dannemiller, 229 N.J. Super. 187, 190 (App. Div.
1988), we observed that the Tischio Court's concern about the
"invasion of [a defendant's] rights by prolonged detention" was
the "primary reason for requiring the administration of [alcohol
breath] tests within a reasonable time of operation or arrest as
4
The majority opinion in Tischio also concluded that alcohol
breath tests administered during an investigation in a driving
while intoxicated case "must be taken 'within a reasonable time'
after the arrest." Tischio, supra, 107 N.J. at 521. Defendant was
not under arrest at the time of the blood draw at issue here.
10 A-3737-15T3
no scientific basis for the requirement has been demonstrated."
We determined that in assessing whether there was unreasonable
delay, "[e]ach case must . . . be examined . . . to determine
whether the motorist's rights have been violated by undue delay."
Ibid.
In Dannemiller, we further determined the court properly
rejected the defendant's claim there was a violation of Tischio's
"unreasonable time principle" because he failed to show "prejudice
or reason to doubt the accuracy of the" chemical breath tests, and
failed to make any "claim of prolonged detention or of any
intervening imbibing of an alcoholic beverage, illness, or
untoward event which might affect his condition." Ibid. For the
same reason, we reject defendant's claim here. Defendant was
promptly removed from the accident scene and taken to the hospital
for medical reasons, was never detained by police prior to the
blood draw, and there is no evidence that, during the two hour and
fifteen minutes that elapsed from the occurrence of the accident
to the blood draw, there was an intervening incident that might
have affected defendant's condition. Defendant does not claim she
suffered any prejudice as a result of the purported delay and
there is no evidence showing the delay affected the accuracy of
the blood tests.
11 A-3737-15T3
Moreover, given the nature of the accident, the need to
transport defendant to a medical facility and all of the attendant
circumstances, the two-hour-and-fifteen-minute delay in obtaining
the blood draw was not unreasonable. See State v. Samarel, 231 N.J.
Super. 134, 142-43 (App. Div. 1989) (finding defendant failed to
show there was an unreasonable delay in administering chemical
breath tests where they were administered almost three-and-a-half
hours after a motor vehicle accident).
Affirmed.
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