NOT FOR PUBLICATION WITHOUT THE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-4804-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM SMIEJAN,
Defendant-Appellant.
Argued February 1, 2017 – Decided April 24, 2017
Before Judges Alvarez and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Municipal
Appeal No. 04-14.
Brian J. Neary argued the cause for appellant
(Law Offices of Brian J. Neary, attorneys; Mr.
Neary, of counsel and on the brief; Suzanne
Axel, on the brief).
Kerry J. Salkin, Assistant Prosecutor, argued
the cause for respondent (Esther Suarez,
Hudson County Prosecutor, attorney; Ms.
Salkin, on the brief).
PER CURIAM
On March 12, 2014, defendant William Smiejan, entered a guilty
plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, after
the municipal court denied his motion to suppress his blood alcohol
content (BAC) results. That decision was affirmed by a Law
Division judge on May 18, 2015. We now reverse and remand.
On April 17, 2013, the United States Supreme Court decided
Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d
696 (2013). The case stands for the proposition that "in drunk-
driving investigations, the natural dissipation of alcohol in the
blood stream does not constitute an exigency in every case
sufficient to justify conducting a blood test without a warrant."
Id. at ___, 133 S. Ct. at 1568, 185 L. Ed. 2d at 715.
In State v. Adkins, 221 N.J. 300 (2015), our Supreme Court
held "that McNeely's pronouncement on the Fourth Amendment's
requirements must apply retroactively to cases that were in the
pipeline when McNeely was issued." Id. at 303. The Court
explained that although the potential dissipation of alcohol in
the blood as a result of the body's processing of the chemical
over time "may be given substantial weight as a factor to be
considered in the totality of the circumstances[,]" it is only one
of many considerations regarding exigencies that may justify a
blood draw in the absence of consent or a search warrant. Ibid.
The Court remanded the case for the municipal court to take
testimony and render a decision on the issue of exigency. Id. at
317.
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It is undisputed that on January 16, 2013, in the middle of
the afternoon on a weekday, defendant was involved in an accident
in which he struck two parked cars. He was taken to the hospital
with lacerations to the face and a bloody nose. A sample of his
blood was taken without his consent or a search warrant.
Subsequent testing established his BAC at 0.286 percent.
Defendant suffers from a variety of physical and mental health
ailments related to a workplace explosion that occurred many years
prior. As a result of these conditions, his municipal court
attorney, who has since been disbarred, argued on sentencing that
he should be placed on a bracelet program. The municipal court
judge correctly denied the application since it is black-letter
law that alternatives to incarceration are not available by way
of sentence on a DWI conviction.
The municipal court judge also reasoned that despite the
McNeely decision, exigent circumstances existed because of the
delays inherent in the warrant application process. The only
evidence the court reviewed at the suppression hearing was police
and medical reports. No testimony was taken. The court heard
argument and considered briefs filed by counsel. Although the
judge agreed that McNeely applied because this case was already
in the pipeline, he held that "knowing what the process in New
3 A-4804-14T3
Jersey is or, frankly, in Hudson County in New Jersey[,]" exigency
existed.
In her May 18, 2015 written decision, the Law Division judge
on the de novo appeal agreed. See R. 3:23-8. She echoed the
municipal court judge's determination that the officers' actions
were reasonable given the difficulties inherent in the middle of
the afternoon in the middle of the week "for an officer to find
an assistant prosecutor, prepare a search warrant, and have a
judge sign off on the warrant [because it] would take a long enough
period of time to justify exigent circumstances." She went on to
state that
Issues surrounding the practicality of
finding a prosecutor, and issuing telephonic
warrants, were in this case, specific to the
municipal court. The record reflects that the
trial judge's own experience with such matters
were weighed heavily in deciding whether there
was exigency at the time [defendant]'s blood
was drawn. Even if this [c]ourt might have
reached a different conclusion, the trial
court's findings should not be disturbed where
they could have reasonably been reached on
sufficient credible evidence. Giving
deference to those findings of the trial judge
which are substantially influenced by his
opportunity to have the "feel" of the case,
this [c]ourt finds that the trial court did
not err in denying [defendant]'s [m]otion to
[s]uppress.
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Now on appeal, defendant raises the following issues:
POINT I
THE FORCIBLE SEIZURE OF BLOOD SAMPLES FROM MR.
SMIEJAN WITHOUT HIS CONSENT OR A SEARCH
WARRANT VIOLATED THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND, ACCORDINGLY,
SUCH EVIDENCE MUST BE SUPPRESSED.
POINT II
A PRE-McNEELY ANALYSIS COMPELS THAT THE
EVIDENCE BE SUPPRESSED.
POINT III
CONSIDERATIONS OTHER THAN McNEELY COMPEL
EXCLUSION OF THE BLOOD EVIDENCE.
POINT IV
THE COURT SHOULD PERMIT MR. SMIEJAN TO
WITHDRAW HIS GUILTY PLEA.
POINT V
MR. SMIEJAN'S CONVICTION MUST BE REVERSED
BASED UPON INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL.
This case was in the pipeline when McNeely was decided. We
thus address whether an adequate exigency existed excusing the
need to obtain consent or a search warrant. We conclude that the
Law Division judge erred in relying upon the municipal court
judge's past experience as a factual basis to find the existence
of an adequate exigency.
Speculation anchored on past experiences cannot rise to the
necessary threshold. The only fact of which the judge properly
took judicial notice was the fast dissipation of alcohol from the
blood attributable to the passage of time. See Adkins, supra, 221
5 A-4804-14T3
N.J. at 316 (quoting State v. Dyal, 97 N.J. 229, 239-40 (1984))
("one crucial consideration is that the body eliminates alcohol
at a rapid rate"). In this case, there were no meaningful factual
findings made by either the municipal court judge or the Law
Division judge. From that insufficient basis both judges drew
their legal conclusions, to which we owe no deference. See State
v. Watts, 223 N.J. 503, 516 (2015); State v. Vargas, 213 N.J. 301,
327 (2013).
The heart of McNeely is that the natural metabolization of
alcohol in the blood does not create a per se exigency for all
drunk-driving cases. The "exigency in this context must be
determined case-by-case based on the totality of the
circumstances." McNeely, supra, ___ U.S. at ___, 133 S. Ct. at
1556, 185 L. Ed. 2d at 702. In those cases in which an officer
can reasonably obtain either a warrant or a consent "without
significantly undermining the efficacy of the search, the Fourth
Amendment mandates that they do so." Id. at ___, 133 S. Ct. at
1561, 185 L. Ed. 2d at 707. "[R]eviewing courts [must] focus on
the objective exigency of the circumstances that the officer faced
in this situation." Adkins, supra, 221 N.J. at 317. Accordingly,
a remand is necessary for a hearing as to whether the circumstances
warranted the admission of the blood draw in this case.
6 A-4804-14T3
Reversed and remanded for further proceedings consistent with
this opinion.
7 A-4804-14T3