Opinion
DOCKET NO. A-5439-14T4
03-31-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. TIMOTHY ADKINS, Defendant-Respondent.
Sean F. Dalton, Gloucester County Prosecutor, attorney for appellant (Temperance Williamson, Assistant Prosecutor, on the brief). Klineburger and Nussey, attorneys for respondent (Richard F. Klineburger, III, and Carolyn G. Labin, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer and Haas. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-08-0734. Sean F. Dalton, Gloucester County Prosecutor, attorney for appellant (Temperance Williamson, Assistant Prosecutor, on the brief). Klineburger and Nussey, attorneys for respondent (Richard F. Klineburger, III, and Carolyn G. Labin, on the brief). PER CURIAM
Following an evidentiary hearing ordered by the Supreme Court in State v. Adkins, 221 N.J. 300, 303 (2015), and with leave granted, the State appeals from the Law Division's June 25, 2015 order granting defendant Timothy Adkins's motion to suppress the blood alcohol content (BAC) results the State obtained from a warrantless blood draw. We affirm.
I.
We begin by referencing the essential background facts and procedural history set forth in Adkins:
Police arrested defendant . . . on suspicion of drunk driving after his single-vehicle car crash caused injuries to his passengers and he failed field sobriety tests. The police obtained defendant's BAC results from a sample, drawn by hospital personnel at police direction, without the police first having secured a warrant or defendant's prior written consent.Later that day, the police charged defendant with driving while intoxicated (DWI), N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; and possession of an open container in a motor vehicle, N.J.S.A. 39:4-51a. Id. at 304. On August 3, 2011, a Gloucester County grand jury issued a one-count indictment, charging defendant with fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2). Ibid.
[Id. at 302.]
Prior to trial, the United States Supreme Court issued its opinion in Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), "which held that the natural metabolism of alcohol in an individual's bloodstream does not constitute a per se exigency under a Fourth Amendment search and seizure analysis." Ibid. Based upon McNeely, defendant filed a motion to suppress his BAC results. Id. at 304-05.
After a hearing in which only defendant testified, the court applied McNeely and excluded defendant's blood test results. On appeal, the Appellate Division reversed, declining to apply the exclusionary rule when officers relied on pre-McNeely New Jersey case law that had permitted warrantless blood draws based on the exigency inherent in the human body's natural dissipation of alcohol.
[Id. at 302-03.]
The Court granted defendant's petition for certification. Id. at 306. In reversing and remanding for the evidentiary hearing, the Court stated:
[W]e conclude that McNeely's pronouncement on the Fourth Amendment's requirements must apply retroactively to cases that were in the pipeline when McNeely was issued. We are constrained to adhere to the McNeely Court's totality-of-the-circumstances approach notwithstanding that our case law, like that of many sister states, had provided de facto, if no de jure, support for law enforcement to believe that alcohol dissipation in and of itself supported a finding of exigency for a warrantless search of bodily fluids in suspected driving-under-the-influence cases.
[Id. at 303.]
The Court continued:
Because McNeely must apply retroactively to all cases, federal or state, pending on direct review at the time of that decision, we must reverse the Appellate Division judgment. However, we remand to allow the State and defendant the opportunity to re-
present their respective positions on exigency in a hearing on defendant's motion to suppress the admissibility of the blood test results. We further hold that, in that hearing, potential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. In reexamining this matter, in which law enforcement may have relied on prior guidance from our Court that did not identify the obligation to evaluate whether a warrant could be obtained, we direct the reviewing court to focus on the objective exigency of the circumstances faced by the officers.
[Ibid.]
II.
In compliance with the Court's directive, the trial court conducted an evidentiary hearing on June 25, 2015. We derive the following facts from the record developed at that proceeding.
At approximately 2:20 a.m. on December 16, 2010, State Police Sergeant Timothy Eddis and his partner were driving on Route 130 when they came upon a truck that had overturned. The driver, later identified as defendant, was standing outside the truck. The troopers stopped and found that two women were still inside the vehicle. The troopers helped the women get out of the truck. Eddis testified that his partner radioed the West Deptford police to report the accident and also called emergency medical services (EMS) personnel to the scene.
At approximately 2:30 a.m., Officer Steven Shirey responded to the call. When he arrived at the scene, Shirey noted that defendant and the two women were out of the truck and in the median of Route 130. Defendant and one of the women were standing and hugging. The other woman was lying on the ground. EMS personnel examined all three individuals. The two women were transported to a hospital. However, the EMS personnel determined that defendant "was fine" and "he refused treatment[.]"
The two troopers left the scene immediately after apprising Officer Shirey of the situation. Other West Deptford officers arrived to assist with traffic control and other matters. Because the truck had hit and snapped a utility pole, one of the officers contacted the utility company to assess the damage to the pole.
One of the women suffered sprained ankles and a cut on her forehead that required stitches; the other had a dislocated thumb and lacerations. However, the officers at the scene were not aware of the extent of the women's injuries at the time they were taken to the hospital.
Officer Shirey spoke to defendant, who told him he was driving the truck at the time of the accident. Defendant "said he was just driving and wasn't . . . sure what happened." Defendant admitted that he was coming from a nearby bar and "had been drinking earlier." Defendant was also not sure when he had "his last drink[.]" Shirey noticed "some open containers of alcohol" in the truck and "detected an odor of alcoholic beverage on [defendant's] breath."
Officer Shirey administered three sobriety tests to defendant at the scene. Defendant was unable to recite the alphabet; complete "the one leg stand test"; or walk in a straight line. Shirey then arrested defendant on suspicion of DWI. Another officer transported defendant to police headquarters "to begin processing him." Shirey followed.
Another officer recorded the test results with a video camera mounted on his patrol car.
At the station, Shirey advised defendant of his Miranda warnings at 2:57 a.m. There was an Alcotest machine at the station and Shirey testified that it was "operable" and "available[.]" However, Shirey did not administer the Alcotest to defendant. Instead, Shirey testified that he received a call from Sergeant Shillingford, who was at the scene of the accident. The sergeant told Shirey "that [defendant] was to be taken to the hospital to get blood samples."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
According to Officer Shirey, the machine was located approximately 100 feet away from where he was speaking to defendant. Shirey confirmed that defendant was having no "difficulty walking" while he was at the station.
Shirey complied with the sergeant's order and drove defendant to the hospital. After being examined by hospital staff "for possible injuries[,]" a nurse drew defendant's blood at 4:16 a.m.
The record contains a Certificate of Request to Withdraw Specimen form, which the hospital provided to the police pursuant to N.J.S.A. 2A:62A-11, a statute providing civil and criminal immunity to medical personnel who draw blood samples at the request of a law enforcement officer. This form is not intended to establish a suspect's consent to a warrantless search. Shirey signed the form at 4:15 a.m. The nurse who drew the blood sample stated that the sample was taken at 4:16 a.m. However, the form indicates that defendant did not affix his signature until 4:18 a.m. Shirey testified that the nurse must have mistakenly filled in the wrong time on the form. However, in her original, July 7, 2013 decision granting defendant's motion to suppress, the trial judge found, based on the times set forth on the form and defendant's testimony at a May 24, 2013 suppression hearing, that defendant's consent was not obtained prior to the blood draw. The judge also found that the form did not establish defendant's voluntary consent because it did not advise defendant that he could refuse the test, or that the test results could be used against him in court. In Adkins, the State did not challenge the judge's decision on the consent issue. Adkins, supra, 221 N.J. at 304 n.2.
Detective Nicholas Schock of the Gloucester County Prosecutor's Office's Crash Investigation Unit was the State's final witness. Schock arrived at the accident scene at approximately 3:30 a.m. After surveying the scene, Schock testified that he instructed Sergeant Shillingford to have a blood sample drawn from defendant at the hospital. In explaining his reasons for issuing that order, Schock testified that "there [were] protocols set forth by our office as to [the] preferred method for obtaining blood alcohol levels in cases where there's motor vehicle crashes involving injuries and stuff like that." Schock continued by stating that "because there were potential criminal charges, . . . blood testing is the preferred method for obtaining blood alcohol results." As directed, Sergeant Shillingford relayed the order to Officer Shirey.
Defendant did not testify and did not present any witnesses.
Detective Schock testified that seeking a warrant prior to obtaining a blood sample "wasn't part of the policy at the time." In addition, because it was before "normal working hours[,]" Schock did not believe that a judge would be available to consider a warrant application. Schock stated that he had never obtained a warrant for a blood sample prior to McNeely, and had never been trained or instructed that warrants were required.
Schock further stated that a breathalyzer test was not administered at the station because it "was not our policy at the time." He testified that a blood test and an Alcotest were "both accurate; but . . . at least with the blood sample we have the scientists and forensic backing to testify if needed for the criminal prosecution, which is why it's the preferred method." However, he acknowledged that the Alcotest would have been completed sooner at the station than the blood sample, which was not completed until 4:16 a.m. Because of that, Schock testified that the results of the Alcotest would have been closer to what defendant's BAC was at the time of the accident than the results of the blood test.
In a thorough oral opinion, the judge granted defendant's motion to suppress the BAC results. As directed by the Court, the judge examined the totality of circumstances, and found that there were no objective exigent circumstances supporting the warrantless blood draw. The judge observed that, although defendant had been in an accident that resulted in injuries to his passengers, "there [was] no indication that defendant was under the need of medical treatment, or transported to the hospital for medical treatment." Thus, the judge distinguished this case from our post-Adkins decision in State v. Jones, 441 N.J. Super. 317 (App. Div. 2015).
In Jones, the defendant was seriously injured in a car accident. Id. at 321. It took thirty minutes to extricate the defendant from her vehicle, and she was unconscious and bleeding. Ibid. The police officer took the defendant to the hospital, where the blood draw was conducted approximately one hour and fifteen minutes after the officers first arrived at the accident scene. Ibid. "Viewing the circumstances . . . objectively," we concluded that the emergency situation presented to the police supported the warrantless blood draw involved in that case. Ibid.
The judge also noted that defendant was first taken to the police station, where there was an operable Alcotest machine available to test defendant's BAC. The judge found that, while the State may have preferred a blood test, "there was nothing standing in the way of the police officers . . . administering an Alcotest when they had a working Alcotest machine." This appeal followed.
III.
On appeal, the State argues that "[t]he trial court should not have suppressed the blood evidence of defendant's intoxication where officers faced exigent circumstances bypassing the warrant requirement." We disagree.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that are "substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original) (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid.
Applying these principles, we discern no basis for disturbing the trial judge's reasoned determination that there were no objective circumstances supporting the officers' decision to forego an available Alcotest in favor of a blood draw at the hospital. Unlike the unconscious and bleeding driver in Jones, defendant was not injured in the accident. He was standing by the truck when the troopers arrived, and was standing in the median when Officer Shirey got to the scene. The EMS first responders examined defendant and found that he "was fine" and needed no medical treatment. Thus, there was no reason to take defendant to the hospital.
Instead, Shirey administered three field sobriety tests to defendant, concluded he was intoxicated, and placed him under arrest. Another officer drove defendant to the police station for processing and the administration of the Alcotest. Shirey read defendant his Miranda rights at 2:57 a.m. and was prepared to conduct the Alcotest on the available and operable machine. However, sometime after Detective Schock arrived at the accident scene at 3:30 a.m., he directed Sergeant Shillingford to have Shirey take defendant to the hospital for a blood test. As a result, defendant's blood was not drawn until 4:16 a.m.
Schock did not testify that he issued this order because he feared that defendant's BAC levels would fall. He acknowledged that, by bypassing the readily available Alcotest, the BAC results from a blood test were less likely to approximate defendant's BAC at the time of the accident. Instead, the detective stated that he wanted defendant to submit to a blood test because it was the prosecutor's office's policy and preference to have blood drawn in any case where criminal charges were possible. The office's policy also did not require requests for warrants before obtaining a blood sample.
Under these circumstances, we agree with the trial judge that there were no exigent circumstances compelling the warrantless drawing of defendant's blood. Dissipation of alcohol was not a substantial factor, or even a consideration. The decision to forego the Alcotest and wait almost an hour longer to determine defendant's BAC was based solely upon the prosecutor's office's preference for blood tests. However, it is well established that "[a] court may convict a defendant of DWI if [he or] she registers a blood alcohol level of 0.08% or higher" on an Alcotest. State v. Kuropchak, 221 N.J. 368, 383 (2015) (citing State v. Bealor, 187 N.J. 574, 588 (2006)).
Therefore, there was simply no "objective exigency" supporting the officers' decision to transport defendant to the hospital so that a blood test could be taken well over an hour after he was in police custody. Under the totality of the circumstances analysis required by Adkins, we conclude there was no justification for the warrantless blood draw.
The State also argues that it "secured defendant's blood by consent" and therefore, the BAC results should be admissible. Again, we disagree.
In its original appeal, the State did not challenge the trial judge's determination that defendant's blood was drawn without his voluntary consent. Adkins, supra, 221 N.J. at 304 n.2. In remanding the issue of exigent circumstances for an evidentiary hearing, the Supreme Court did not order the trial judge to revisit her well-supported decision rejecting the State's claim that defendant consented to the blood draw. See id. at 317. Therefore, the State's attempt to revisit the trial judge's decision on consent was clearly beyond the scope of the Court's remand order and the judge properly rejected it. See Flanigan v. McFeely, 20 N.J. 414, 420 (1956) (noting that "the trial court is under a peremptory duty to obey . . . the mandate of the appellate court precisely as it is written").
In our opinion in Adkins, we observed that "[t]he State ha[d] waived any claim of Fourth-Amendment consent, and for purposes of this opinion it [was] irrelevant that defendant signed the form after the blood was drawn." State v. Adkins, 433 N.J. Super. 479, 482 n.4 (App. Div. 2013), rev'd and remanded, 221 N.J. 300 (2015). --------
However, even if this issue were properly before us, we discern no basis to disturb the trial judge's July 7, 2013 determination that the State "failed to establish by clear and positive evidence that consent was unequivocally, intelligently, and voluntarily given to conduct the search and seizure of [defendant's] blood." Defendant did not sign the form until after his blood was drawn. In addition, we observed in our opinion in Adkins that the form defendant signed is designed only to document that the blood specimen was taken "in a medically acceptable manner." Adkins, supra, 433 N.J. Super. at 482 n.4 (quoting N.J.S.A. 2A:62A-11). Thus, the form "was not intended to establish a suspect's consent to a warrantless search, but rather was intended to satisfy the immunity statute and establish the chain of custody of the blood sample." Ibid.
As the trial judge found, nothing in the record indicates that Officer Shirey advised defendant that he did not have to consent to the blood draw, the results could be used against him in court, or he could have his own independent test performed. Because there is sufficient credible evidence in the record to uphold the judge's findings, we affirm her conclusion that defendant did not consent to the blood draw.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION