NOT FOR PUBLICATION WITHOUT THE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-4094-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BHAVUK UPPAL,
Defendant-Appellant.
_________________________
Submitted July 15, 2020 – Decided August 27, 2020
Before Judges Hoffman and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 16-05-0397.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alicia J. Hubbard, Assistant Deputy Public
Defender, of counsel and on the brief).
Frederic M. Knapp, Morris County Prosecutor, attorney
for respondent (John K. McNamara, Jr., Chief Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Bhavuk Uppal appeals from a December 1, 2017 judgment of
conviction (JOC) sentencing him to twenty-one years of imprisonment for
vehicular homicide. On appeal, he challenges the September 26, 2017 trial court
decision which denied his motion to suppress the results of the toxicological
samples taken at the hospital by medical personnel during the course of
treatment following the accident. We affirm, with a limited remand to correct
the JOC.
I
On May 19, 2016, a Morris County grand jury returned Indictment No.
16-05-0397, charging defendant with three counts of first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4a(l) (counts one to three); three counts of
second-degree reckless death by a vehicle (vehicular homicide), N.J.S.A. 2C:ll-
5a (count four to six); three counts of third-degree causing death while driving
with a suspended license, N.J.S.A. 2C:40-22a (count seven to nine); two counts
of fourth-degree assault by a vehicle, N.J.S.A. 2C:12-lc(2) (count ten and
eleven); third-degree unlawful taking of a means of conveyance, N.J.S.A.
2C:20-10c (count twelve); and fourth-degree unlawful taking of a means of
conveyance, N.J.S.A. 2C:20-10b (count thirteen).
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We derive the following facts from the suppression motion record. On
July 11, 2015, at approximately 1:37 a.m., defendant was driving home from
work on Route 80 in Rockaway when he crashed his Cadillac Escalade into the
rear of a Jeep stopped in traffic in a construction zone. This collision caused a
chain reaction, when the Jeep collided with a Kia sedan, which crashed into
another vehicle. The Kia quickly became engulfed in flames in the center lane.
The three occupants of the Kia could not escape the vehicle and died at the scene.
The two occupants of the Jeep also sustained injuries and required transport to
a nearby hospital.
Meanwhile, defendant's vehicle overturned and landed on the right side of
Route 80 in an embankment. An off-duty emergence medical technician (EMT)
arrived at the scene, found defendant lying on the ground near his vehicle, and
provided him aid. The EMT noted defendant's breath smelled of alcohol and his
pupils reacted slowly. In response to the EMT's questioning, defendant
acknowledged he drank alcohol. The EMT conveyed to Trooper Mudduser
Malik that he smelled alcohol on defendant's breath. When asked by Trooper
Malik, defendant denied consuming alcohol. According to defendant, he
reached down to get a cigarette and when he looked back up, traffic had come
to a halt and he was unable to stop before hitting the Jeep.
A-4094-17T3
3
Trooper Malik noted defendant's eyes were bloodshot and watery, and his
eyelids were droopy. He also confirmed with defendant that he was the driver
of the Escalade. A mobile intensive care nurse who provided aid to defendant
observed him lethargic with slurred speech. He also detected an odor of alcohol
emanating from defendant. Emergency medical service personnel removed
defendant from the scene and had to restrain him to secure him on a stretcher
before loading him into an ambulance.
The ambulance transporting defendant arrived at Morristown Memorial
Hospital at 2:17 a.m., approximately forty minutes after the State Police
received notification of the collision. At approximately 2:18 a.m., as part of
normal procedures and protocols, the attending physician ordered hospital
personnel to draw five samples of defendant's blood. The physician also ordered
chest x-rays and radiological studies including CT scans of the head, chest and
abdomen. Medical personnel admitted defendant to the emergency room at
approximately 2:30 a.m., positioned a cervical collar on him, inserted a catheter
while he slept, and obtained routine urine samples for analysis.
State police arrived at the hospital at approximately 3:09 a.m. and directed
hospital personnel to retain blood samples for law enforcement. Hospital
personnel filled out a "general laboratory requisition" form, which indicated
A-4094-17T3
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various specimens needed to be "save[d] for investigation." Police obtained a
telephonic search warrant from the court at 4:33 a.m. to collect blood samples .
Pursuant to the warrant, hospital personnel drew a sample of defendant's blood
at 4:37 a.m. Police interviewed defendant's father who disclosed defendant
drove the Cadillac with a suspended license and without permission, was
recently hospitalized for a suicide attempt, and was addicted to heroin. At
approximately 5:57 a.m., after medical personnel cleared defendant for release,
police took him into custody.
Judge James Demarzo authorized a search warrant for the collection and
analysis of the blood samples taken by the medical personnel at the hospital.
Law enforcement retrieved the samples and forwarded them to the State Police
laboratory for analysis.
Judge DeMarzo also signed an order, pursuant to State v. Dyal, 97 N.J.
229 (1984) and Rule 7:7-8, authorizing the State to obtain a certified copy of
defendant's toxicology report and other medical records related to the analysis
of blood and urine samples taken from defendant for medical diagnosis. The
records disclosed evidence of the use of opiates by defendant and all but one of
the samples indicated a blood alcohol level of .08 at the time of the accident.
A-4094-17T3
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On September 26, 2017, Judge Stephen J. Taylor granted in part and
denied in part the State's motion to admit evidence, pursuant to N.J.R.E. 404(b).
The judge denied defendant's motion to suppress his initial blood and urine
samples taken by medical personnel prior to the issuance of the telephonic
warrant. Defendant argued medical personnel obtained his blood and urine not
for medical purposes but rather for forensic purposes without a warrant, contrary
to Missouri v. McNeely, 569 U.S. 141 (2013). The judge rejected defendant's
argument explaining,
there is no evidence that medical personnel drew blood
and urine at the request of law enforcement or for
purposes other than medical diagnosis and treatment.
The hospital records clearly established that medical
personnel ordered the draws, and there is no indication
that law enforcement ordered or directed any of the
initial draws.
Judge Taylor also noted the medical records revealed defendant was
evaluated by medical personnel for extensive trauma. Thus, the judge reasoned
the extensive testing was "compelling proof that medical personnel were
concerned regarding possible injuries to [] defendant, and that the diagnostic
tests, including the blood and urine draws, were not a pretext." Additionally,
the judge rejected defendant's remaining argument, finding he was "not under
A-4094-17T3
6
arrest or otherwise in custody of law enforcement when he was strapped to the
stretcher" as preparation for transport to the hospital by medical personnel.
On June 28, 2016, pursuant to a plea agreement, defendant pled guilty to
three counts of second-degree reckless death by a vehicle (vehicular homicide),
N.J.S.A. 2C:11-5A (counts four to six). He also pled guilty to operating under
the influence of alcohol, N.J.S.A. 39:4-50 and driving while suspended, N.J.S.A.
39:3-40.
On December 1, 2017, Judge Taylor held defendant's sentencing hearing.
The judge found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the nature and
circumstances of the offense and the role of the actor therein, including whether
or not it was committed in an especially heinous, cruel, or depraved manner );
three, N.J.S.A. 2C:44-1(a)(3) (risk defendant will commit another offense); and
nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating
the law). Regarding aggravating factor one, the judge found the nature and
circumstances of defendant's actions endangered other drivers and went "beyond
that degree of recklessness needed for vehicular homicide." He noted that
defendant admitted at his plea hearing that he operated his vehicle after drinking
four shots of whisky, without permission from the owner, and while his license
was suspended. The judge highlighted that the proofs showed defendant
A-4094-17T3
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traveled at excessive speed, failed to notice
construction signs warning of traffic slowdowns and
merging lanes, failed to observe traffic slowing down
in front of him, failed to observe the roadway, having
bent down to retrieve a cigarette according to his plea,
although other credible evidence suggests he was
bending down to retrieve a hypodermic needle
recovered from the car; and failed to apply the brakes
prior to plowing into the rear-end of the victim's vehicle
while traveling at excessive speed.
Addressing aggravating factor three, the judge noted defendant's juvenile
adjudication for robbery, prior disorderly persons offense, horrendous driving
record, substance abuse history, and failure to obtain long-term treatment for his
substance abuse despite opportunities to do so, weighed against him. The judge
gave this factor "very significant weight."
Regarding aggravating factor nine,1 Judge Taylor noted a "compelling
need" to deter defendant specifically and others from violating laws that threaten
highway travelers. The judge gave "significant weight" to all three aggravating
factors and found they substantially outweighed the "non-existent mitigating
factors."
1
The JOC incorrectly lists that the judge found aggravating factor six, rather
than aggravating factor nine. As a result, we remand for the court to enter a
corrected JOC.
A-4094-17T3
8
The court sentenced defendant in accordance with the plea agreement to
seven years on count four, seven years on count five, and seven years on count
six. The court ordered all counts to run consecutively for an aggregate sentence
of twenty-one years, with an eighty-five percent period of parole ineligibility,
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition,
the judge imposed a total of nine years of parole supervision upon defendant's
release from prison. The court ordered concurrent sentences for the motor
vehicle convictions, including the mandatory term of 180 days in jail for a third
driving while intoxicated conviction. Defendant received an 874-day credit for
time served. In addition to the mandatory fees and assessments, the court
suspended defendant's driving privileges for ten years upon completion of his
sentence.
On appeal, defendant presents the following arguments for our
consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS THE
BLOOD DRAW BECAUSE IT WAS
OBTAINED WITHOUT HIS CONSENT,
EXIGENCY OR A WARRANT AND WAS NOT
FREELY AND VOLUNTARILY GIVEN. U.S.
CONST. AMENDS. IV AND XIV; N.J. CONST.
ART. I, PAR. 7.
A-4094-17T3
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A. The seizure was an improper arrest not
premised on probable cause.
i. The police seizure of Uppal was an
arrest.
ii. There was no probable cause for the
arrest.
B. There was no exigency, warrant, or consent
for the blood or urine draws.
POINT II
THE TRIAL COURT IMPOSED SENTENCE
AFTER IMPROPERLY CONSIDERING
UNPROVEN CHARGES, CONSIDERING
DEFENDANT'S MENTAL HEALTH ISSUE AS
AN AGGRAVATOR WITHOUT
EXPLANATION, AND FAILING TO
CONSIDER THE LIKELIHOOD THAT THE
YOUTHFUL DEFENDANT WOULD NOT
REOFFEND.
A. Consideration of dismissed charges.
B. The use of mental illness as an aggravating
factor.
C. Failure to consider the likelihood that Uppal
would not reoffend.
II
We first address defendant's argument that he was under arrest at the time
he was "removed from the scene and bodily fluids were taken from him." He
A-4094-17T3
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asserts there "was no probable cause to believe [he] was intoxicated, and
therefore, no reason to arrest him and forcibly take him to the hospital." He
alleges the original blood draw "was independently unconstitutional because it
took place absent exigency, consent, or a warrant."
We apply a highly deferential standard of review to a trial judge's
determination on a motion to suppress. State v. Gonzales, 227 N.J. 77, 101
(2016). We will uphold "the motion judge's factual findings so long as sufficient
credible evidence in the record supports those findings. Those factual findings
are entitled to deference because the motion judge . . . has the 'opportunity to
hear and see the witnesses and to have the "feel" of the case, which a reviewing
court cannot enjoy.'" Ibid. (citations omitted) (quoting State v. Johnson, 42 N.J.
146, 161 (1964)).
Both the United States Constitution and the New Jersey Constitution
guarantee freedom from unreasonable searches and seizures by the government.
U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Taking a "blood sample for the
purpose of alcohol-content analysis constitutes a search" under the Fourth
Amendment. State v. Zalcberg, 232 N.J. 335, 345 (2018) (citing Schmerber v.
California, 384 U.S. 757 (1966)).
A-4094-17T3
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Applying the above standards, we discern no reason to reverse the denial
of defendant's motion. The judge found the attending physician's order to
hospital personnel to draw five samples of defendant's blood and urine was
routine medical care appropriately administered to him after a serious car crash.
The judge noted the numerous tests ordered indicated the medical personnel's
concerns that defendant may have suffered serious internal injuries.
We also discern no basis to disturb the judge's conclusion that defendant
was not under arrest or otherwise in custody of law enforcement when he was
strapped to the stretcher. Gonzales, 227 N.J. at 101. Defendant's reliance on
McNeely is misplaced because in that case the police drove the defendant to the
hospital and "directed a hospital lab technician to take a blood sample," without
first obtaining a warrant. 569 U.S. 141, 146 (2013). Here, an ambulance drove
defendant to the hospital; in addition, the record contains no evidence that police
officers accompanied defendant to the hospital or that officers were present
when medical personnel obtained the original blood and urine samples.
Defendant additionally failed to provide any evidence that police ordered or
directed any of the initial draws. The record reflects that medical personnel
drew defendant's blood at 2:18 a.m., nearly an hour prior to police arriving.
Thus, we find no basis to support defendant's contention that police ordered the
A-4094-17T3
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initial blood draw nor do we find the blood draw constituted a search requiring
a warrant because the blood was drawn by medical personnel for treatment
purposes. Zalcberg, 232 N.J. at 345.
We next address defendant's claim of sentencing error. Defendant argues
the judge inappropriately considered contacts with law enforcement "that did
not result in any showing of culpability." Defendant asserts the judge
improperly used his mental health history that included "hospitalizations,
depression, and suicide attempts, as an aggravating factor" when it could only
be used as a mitigating factor. Defendant asserts the judge also failed to consider
his age, as he was twenty-two years old at the time of the offense.
"An appellate court's review of a sentencing court's imposition of sentence
is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318
(2018). In reviewing a sentence, the court must determine whether: "(1) the
sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were . . . 'based upon competent credible evidence in the
record;' [and] (3) 'the application of the guidelines to the facts' of the case
'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)
(third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
A-4094-17T3
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"An appellate court is bound to affirm a sentence, even if it would have
arrived at a different result, as long as the trial court properly identifies and
balances aggravating and mitigating factors that are supported by competent
credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989)
(citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, 95 N.J. at 364-65).
Here, the judge found aggravating factors one, three and nine, N.J.S.A.
2C:44-1(a)(1) (the nature and circumstances of the offense), (3) (risk that
defendant will commit another offense), (9) (need to deter defendant and
others from violating the law). The judge found that the aggravating factors
outweighed the non-existent mitigating factors.
The judge found there was a need to deter defendant and others from
violating the law. The judge noted defendant had not been receptive to
substance abuse treatment and because he remains untreated, he poses a
considerable risk to re-offend. The judge did not abuse his discretion in relying
on these facts. Additionally, the judge noted defendant's "abysmal driving
record." There is sufficient evidence in the record to support the judge's finding
of aggravating factors three and nine.
In short, our review establishes that the sentencing court did not err, and
the sentence was within the guidelines, the aggravating and lack of mitigating
A-4094-17T3
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factors found were based on "competent and credible evidence in the record,"
and the sentence does not shock our judicial conscience. See State v. Fuentes,
217 N.J. 57, 70 (2014) (quoting Roth, 95 N.J. at 364-65 (1984)). However, a
remand is warranted to correct the JOC, which mistakenly refers to aggravating
factor six, when it is clear the judge found aggravating factor nine applied.
Affirmed, with a limited remand for the trial court to enter a corrected
JOC. We do not retain jurisdiction.
A-4094-17T3
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STATE OF NEW JERSEY VS. BHAVUK UPPAL (16-05-0397, MORRIS COUNTY AND STATEWIDE)
Combined Opinion