Opinion
A17-1075
01-22-2019
Nick Norman Korsmo, petitioner, Appellant, v. State of Minnesota, Respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Shawn M. Leggitt, Assistant Public Defender, St. Paul, Minnesota (for appellant) Keith Ellison, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul, Minnesota (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2018). Affirmed
Connolly, Judge Ramsey County District Court
File No. 62-CR-08-2608 Cathryn Middlebrook, Chief Appellate Public Defender, Shawn M. Leggitt, Assistant Public Defender, St. Paul, Minnesota (for appellant) Keith Ellison, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul, Minnesota (for respondent) Considered and decided by Connolly, Presiding Judge; Reilly, Judge; and Reyes, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant argues that he is entitled to have his 2008 test-refusal conviction vacated under Johnson v. State, 916 N.W.2d 674, 684 (Minn. 2018) (holding that the rule that the state cannot make it a crime for a suspected impaired driver to refuse a test unless the police have a search warrant or an exception to the warrant requirement applies, which was set out in Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2185-86 (2016) and applied in State v. Trahan, 886 N.W.2d 216, 223-24 (Minn. 2016) and State v. Thompson, 886 N.W.2d 224, 234 (Minn. 2016), was substantive and therefore applied retroactively) (Johnson); he also argues that he is entitled to a remand for an evidentiary hearing. Because the law at the time of appellant's conviction was that the natural dissipation of alcohol in the blood was an exigent circumstance that justified a warrantless blood draw and because appellant's condition at the time of his arrest was an exigent circumstance, we affirm the denials of his request to vacate his conviction and his motion for an evidentiary hearing on remand.
FACTS
In the ten years prior to May 2008, appellant Nick Korsmo was convicted of three or more impaired-driving offenses. In May 2008, police officers found him lying unresponsive in his vehicle, which was running with the keys in the ignition. They moved him to an ambulance, where a preliminary breath test indicated an alcohol concentration of 0.388. He was taken to a hospital, read the implied-consent advisory, and asked to take a blood or urine test. He refused.
At a plea hearing, appellant admitted that he had refused to provide a blood or urine sample and pleaded guilty to first-degree test refusal. He was sentenced to 42 months in prison, stayed for seven years, and placed on probation. He did not file a direct appeal, and his conviction became final in December 2008. Following a probation-violation hearing in June 2011, the stay was vacated and the sentence was executed.
In December 2016, appellant petitioned for postconviction relief, arguing that the test-refusal statute under which he had been convicted had been deemed unconstitutional by Trahan and Thompson, both applying Birchfield. He did not seek an evidentiary hearing. Respondent State of Minnesota (the state) opposed the petition on the ground that appellant's medical condition had created an "exigent circumstance" exception to the warrant requirement. The district court denied the petition, holding in relevant part that Trahan and Thompson were not retroactive because they altered only the procedure used to obtain convictions, not the activity criminalized or the persons punishable. Appellant sought review of the denial, and this court affirmed it. Korsmo v. State, No. A17-1075 (Minn. App. Mar. 5, 2018) (order op.).
"[The] three holdings [in Birchfield, Trahan, and Thompson] represent a single rule of law that originated in Birchfield and our court applied in Trahan and Thompson" and is referred to as "'the Birchfield rule.'" Johnson, 916 N.W.2d at 678 n.2.
Appellant petitioned for supreme court review; the supreme court granted his petition and stayed further proceedings pending its review of Johnson v. State, 906 N.W.2d 861, 867 (Minn. App. 2018) (concluding "that Trahan and Thompson established a new rule of procedure that does not apply retroactively to appellant's collateral attack on his final convictions for DWI test refusal"), review granted (Minn. Feb. 28, 2018).
In August 2018, the supreme court released Johnson, which holds "that the Birchfield rule is substantive and applies retroactively to . . . convictions on collateral review," but that "there will need to be case-by-case determinations to assess whether there was a warrant or an exception to the warrant requirement sufficient to sustain test-refusal convictions under the Birchfield rule." 916 N.W.2d at 684. The supreme court dissolved the stay of proceedings in this case, vacated this court's order opinion, and remanded the case for reconsideration in light of Johnson. This court ordered the parties to provide supplemental briefs applying Johnson.
Respondent State of Minnesota argues that, at the time of appellant's 2008 conviction, the relevant law was set out in State v. Shriner, 751 N.W.2d 538, 539 (Minn. 2008) ("The rapid, natural dissipation of alcohol in the blood creates a single-factor exigent circumstance that will justify . . . a warrantless, nonconsensual blood draw from a defendant"). Appellant argues that, under Johnson, he is entitled to reversal of his conviction and a remand for an evidentiary hearing.
Although Shriner was abrogated by Missouri v. McNeely, 569 U.S. 141, 156, 147 n.2, 133 S. Ct. 1552, 1563, 1558 n.2 (2013) (holding that "while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, . . . it does not do so categorically" and that the reasonableness of a warrantless blood test of a suspect "must be determined case by case based on the totality of the circumstances"), McNeely does not apply retroactively. O'Connell v. State, 858 N.W.2d 161, 167 (Minn. App. 2015) (holding that McNeely does not apply retroactively in the context of a DWI conviction), review denied (Minn. Oct. 20, 2015); Cibulka v. State, No. A14-1631, 2015 WL 5194617, at *4 (Minn. App. Sept. 8, 2015) (holding that McNeely does not apply retroactively in the context of a test-refusal conviction), review denied (Minn. Nov. 25, 2015).
DECISION
Johnson holds that, "[e]ven though the Birchfield rule applies to Johnson's convictions, reversal of those convictions is not automatic" and that "there will need to be case-by-case determinations to assess whether there was a warrant or an exception to the warrant requirement sufficient to sustain test-refusal convictions under the Birchfield rule." 916 N.W.2d at 684. Neither Birchfield nor Johnson made McNeely retroactive or changed the law as to what constitutes an exigent circumstance.
The question of whether exigent circumstances justify a warrantless blood draw was explored in State v. Stavish, 868 N.W.2d 670, 677 (Minn. 2015) (concluding that, under the totality-of-the-circumstances approach, exigent circumstances justified a warrantless blood draw).
The relevant circumstances are that law enforcement had reason to believe that Stavish, who allegedly admitted to being the driver, had consumed alcohol, and that alcohol contributed to the accident. Thus, it was important to draw Stavish's blood within 2 hours of the accident to ensure the reliability and admissibility of the alcohol concentration evidence. Additionally, Stavish sustained serious injuries that necessitated emergency medical treatment at a hospital . . . . [His] medical condition and need for treatment rendered his future availability for a blood draw uncertain. [The officer] did not know how long Stavish was likely to remain at the same hospital or whether further medical care would preclude obtaining a sample even if Stavish stayed at the same hospital. Consequently, it was objectively reasonable for [the officer] to conclude that he was faced with an emergency in which the delay necessary to obtain a warrant threatened the destruction of evidence.Stavish, 868 N.W.2d at 677-78 (citation omitted). The supreme court rejected the view that the officer should have asked hospital personnel about the driver's condition and treatment because "federal and state privacy laws limit information that may be disclosed about a person's medical condition and treatment without the person's written consent" and "[g]iven the seriousness of Stavish's condition and the fact that [his] medical diagnosis and treatment was evolving, [the officer] could not predict whether [he] would continue to be available for a blood draw even if he was not transported to a different hospital"). Id. at 679.
Here, appellant's unresponsiveness in a running car and his alcohol concentration of 0.388 resulted in his being taken to a hospital, creating an exigent circumstance. The district court did not err in denying appellant's request to vacate his conviction and his motion for an evidentiary hearing on remand.
Each party also argues that the other has the burden of proof as to whether an exigent circumstance existed at the time of the test refusal, an issue recently addressed by this court. See, e.g., Fagin v. State, No. A17-1705 (Minn. App. Nov. 19, 2018) (concluding that the burden of proof is on the state). Because it is undisputed that appellant was found lying unresponsive in a running vehicle, that he was transported to an ambulance where his alcohol concentration was found to be 0.388, and that he was then taken to a hospital, the issue of whether there was an exigent circumstance does not arise, and we do not address it.
Affirmed.