IN COURT OF APPEALS
State of Minnesota,
Janet Sue Shriner,
Dissenting, Willis, Judge
Dakota County District Court
File No. K8-06-1570
Lori Swanson, Attorney General, 1800
James C. Backstrom,
Jeffrey B. Ring, Jeffrey B. Ring and Associates, The Interchange Tower, Suite 1690, 600 South Highway 169, Minneapolis, MN 55426 (for respondent)
Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.
Exigent circumstances, in addition to evidence of alcohol consumption, are constitutionally necessary to authorize a warrantless, nonconsensual blood draw for use in a prosecution for criminal vehicular operation.
The state challenges the pretrial suppression of the results of a warrantless, nonconsensual blood draw, arguing that the presence of alcohol constitutes sufficient exigent circumstances to justify a blood draw. Because we conclude that under the facts present, there was insufficient evidence of exigent circumstances, we affirm.
Janet Shriner was involved in a two-car motor-vehicle accident on May 8, 2006,
at approximately 9:26 p.m. in
Officer Yakovlev arrested Shriner and transported her to nearby Fairview Ridges Hospital. Once there, he directed hospital staff to make a blood draw. The draw was completed less than 45 minutes after the time of the arrest. Shriner’s consent was not sought or obtained and no implied-consent advisory was given to her. Officer Yakovlev testified that he was not “worried [that Shriner] was about to slip under the legal limit at any given moment,” and he did not attempt to obtain a search warrant.
Shriner was subsequently charged with seven criminal counts including first-degree driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(5) (2004), and criminal vehicular operation resulting in bodily harm, in violation of Minn. Stat. § 609.21, subd. 2b(4) (2004).
The district court held an omnibus hearing at which Shriner moved to suppress the blood-test results. Shriner conceded the existence of probable cause to seek the blood test, but asserted that without her consent or a warrant, the blood draw was improper. After granting Shriner’s motion to suppress the blood-test evidence, the district court dismissed the first-degree driving-while-impaired and criminal-vehicular-operation charges under Minn. Stat. §§ 169A.20, subd. 1(5) and 609.21, subd. 2b(4). This appeal by the state follows.
I. Did the suppression of blood-test results have a critical impact on the state’s case?
II. Did the district court err in suppressing the blood-test evidence?
district court’s decision to suppress evidence is a question of law, and we
“independently review the facts” to determine whether the decision is erroneous. State v.
Harris, 590 N.W.2d 90, 98 (
first issue is whether the suppression of the result of the blood test will have
a critical impact on the state’s case. In a critical-impact inquiry, we consider whether
“the lack of the suppressed evidence completely destroys the state’s case” or
“significantly reduces the likelihood of a successful prosecution.” State
v. Kim, 398 N.W.2d 544, 551 (
Here, the significance of the district court’s order suppressing the blood-test evidence is apparent. The district court determined that the charges of both criminal vehicular operation and first-degree driving while impaired required proof that Shriner’s blood-alcohol level was above .08. Because evidence of Shriner’s blood-alcohol level was suppressed, both charges were dismissed. Thus, the suppression of this significant evidence has a critical impact on the state’s case.
The next issue is whether the district court erred in suppressing the blood-test evidence. The state contends that exigent circumstances justified a warrantless draw of Shriner’s blood.
United States Constitution’s Fourth Amendment guarantees “[t]he right of the
people to be secure in their persons . . . against unreasonable searches and
administration of a blood test is considered a search that must comply with the
Fourth Amendment. Schmerber, 384 U.S. at 767, 86 S. Ct. at 1834. In order to meet the requirements of the Fourth
Amendment, a warrantless, nonconsensual blood draw must be supported by both probable
cause and exigent circumstances. State v. Aguirre, 295 N.W.2d 79, 81 (
determining whether the situation presented exigent circumstances, we examine the
totality of the circumstances. State v. Lohnes, 344 N.W.2d 605, 611 (
might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.
state contends that exigent circumstances existed justifying the warrantless draw
of Shriner’s blood. The state
essentially takes the position that due to the evanescent nature of alcohol,
the presence of alcohol in an individual reasonably suspected of an
alcohol-related crime is an exigent circumstance per se justifying a
warrantless blood draw. To support its
position, the state cites numerous previous decisions of the supreme court and
both published and unpublished opinions of this court, including Paul, 548 N.W.2d at 266; State v. Heaney, 689 N.W.2d 168, 173 n.2
A careful review of our caselaw indicates that although there are comments which lend some support to the state’s position, none has expressly held that the presence of alcohol is a per se exigent circumstance sufficient to justify a warrantless blood draw. Other jurisdictions take conflicting positions on this issue. Compare State v. Rodriguez, 156 P.3d 771, 782 (Utah 2007) (declining to assign “per se exigent circumstance status” to warrantless blood draws, but upholding warrantless blood draw at issue in the case based on the totality of the circumstances), with State v. Cocio, 709 P.2d 1336, 1344-46 (Ariz. 1985) (allowing police to obtain blood without a warrant when blood has already been drawn for medical purposes), and State v. Bohling, 494 N.W.2d 399, 400 (Wis. 1993) (“[T]he dissipation of alcohol from a person’s blood stream constitutes a sufficient exigency to justify a warrantless blood draw”). A close reading of Schmerber and other United States Supreme Court decisions does not support the state’s position. See, e.g., Skinner v. Ry. Labor Excecutives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402 (1989) (upholding a warrantless blood draw in civil investigations of railroad accidents); South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916 (1983) (rejecting a claim that admission of evidence of refusal to submit to blood-alcohol test violates the privilege against self-incrimination).
In Rodriguez, the Utah Supreme Court reviewed the legal landscape on this issue, determined that Schmerber is still good law, and concluded:
In light of the foregoing, it is difficult for us to imagine that the United States Supreme Court could muster the assurance that the consequences of alcohol dissipation are so great and the prospects for prompt warrant acquisition so remote that per se exigent circumstance status be awarded to seizures of blood for the purpose of gathering blood-alcohol evidence. Accordingly, we decline to grant per se exigent circumstance status to warrantless seizures of blood evidence.
156 P.3d at 782. The Fourth Amendment represents a fundamental public policy of protecting personal privacy and dignity against unwarranted intrusion by the state. We decline the opportunity to reject the United States Supreme Court’s decision in Schmerber and to adopt a per se rule.
question then becomes whether in this proceeding there are factors, together
with the suspected presence of alcohol, that constitute exigent circumstances
sufficient to justify the warrantless blood draw. We employ a totality-of-the-circumstances
approach. Here, Shriner was arrested at
her vehicle one-half mile from
process for obtaining a search warrant is set out in the statutes and court
law authorizes the use of telephonic warrants.
state argues that the existence of probable cause to believe that Shriner had
violated the criminal-vehicular-operation statute justifies the warrantless
blood draw. The state cites Minn. Stat.
§ 169A.52, subd. 1 (2004), which provides that “if a peace officer has probable
cause to believe that the person has violated section 609.21 (criminal
vehicular homicide and injury), a test may be required and obtained despite the
person’s refusal.” “When an officer has
probable cause to believe [that] a driver is intoxicated and has committed
criminal vehicular operation, the officer may order the taking of a blood
sample without obtaining the driver’s consent.”
State v. Condon, 497 N.W.2d
272, 275 (
note that although the constitutional limits on searches was argued to and
addressed by the district court, and is argued by the parties on appeal, the
district court did not consider, and on appeal the parties do not address, the
constitutionality of Minn. Stat. § 169A.52, subd. 1. We do not usually consider legal issues not
properly raised. Roby v. State, 547 N.W.2d 354, 357 (
Here, the district court did not find that exigent circumstances existed to dispense with the warrant requirements. As already noted, the totality of the circumstances do not support an exigency determination. Officer Yakovlev testified that he was not concerned about the dissipation of alcohol from Shriner’s blood. The scene of the arrest was near the hospital; the time needed to make a blood draw was minimal. The officer was not faced with competing responsibilities. Equally significant, the district court did not find that obtaining a nighttime search warrant was time consuming or created exigent circumstances. The record is silent on the local warrant process and the state does not claim that there is any difficulty in obtaining nighttime or telephonic warrants. On this record, when neither the prosecution nor the district court judge was concerned with the officer’s ability to promptly obtain a warrant, and the district court held a warrant should have been obtained, we are unwilling to reverse the district court and assume that the time needed to obtain a warrant created an exigent circumstance.
The state argues that given the inherent stress that accompanies an accident and arrest situation, the officer should not have to make a judgment call on whether a warrant can be obtained. We do not suggest that the officer’s decision is easy. In determining whether a situation presented exigent circumstances, district courts give due consideration to the wide range of circumstances facing law enforcement. See, e.g., Rodriguez, 156 P.3d at 781 (emphasizing that serious nature of accident and injuries, together with significant evidence of driver’s impairment were “sufficient to establish that the interests of law enforcement outweighed . . . [the driver’s] privacy interests”). On this record where no extenuating circumstance other than the evanescent quality of alcohol is present, we conclude the district court did not err in holding that the police officer must obtain the driver’s consent or obtain a warrant.
D E C I S I O N
The Fourth Amendment of the United States Constitution precludes using the results of a warrantless, nonconsensual blood draw in a criminal prosecution unless law enforcement has probable cause to believe criminal conduct has occurred and there are exigent circumstances in addition to evidence of alcohol consumption. Because the record in this proceeding does not show the presence of necessary exigent circumstances, we affirm.
WILLIS, Judge (dissenting)
I respectfully dissent from the majority’s holding, which would require an on-the-scene assessment of the degree of exigency of the need for alcohol-concentration testing even when police believe a serious criminal offense has occurred.
As the majority points out, both probable cause and exigent circumstances are needed to justify the warrantless removal of blood. State v. Aguirre, 295 N.W.2d 79, 81 (Minn. 1980). The majority asserts that there is no authority holding that the presence of alcohol, and the need, therefore, to test for it, is by itself an exigent circumstance. But our supreme court has unmistakably implied that it is, even when the less-serious offense of DWI is the only crime suspected. See Tyler v. Comm’r of Pub. Safety, 368 N.W.2d 275, 278 (Minn. 1985) (stating that warrantless removal of blood is constitutional if there is probable cause to believe that the offense of DWI has been committed “and that the removal of the blood is necessary to preserve evidence of guilt”). The majority cites no Minnesota decision requiring a case-by-case assessment of the exigency of the need for alcohol testing that its decision imposes, even in DWI cases, which are less serious than the crime suspected in this case.
The majority’s holding rests on a highly selective reading of the caselaw in Minnesota. The majority notes that Aguirre fails to consider Schmerber. But that is because in Aguirre the supreme court treats as settled law its decision in State v. Oevering, 268 N.W.2d 68, 72 (Minn. 1978), in which it broadly construed Schmerber as recognizing exigent circumstances when “destruction of the evidence (i.e., the blood-alcohol content) is threatened.” This broad reading of Schmerber is essential to the development of implied-consent law in Minnesota. Without it, the supreme court could not have stated, as it did in Nyflot v. Comm’r of Pub. Safety, after citing Schmerber, that the legislature “could repeal the implied consent law and direct police officers to administer chemical tests against the suspect’s will.” 369 N.W.2d 512, 517 (Minn. 1985). That view of Schmerber leaves no room for the majority’s reading of the case as limited to its facts, a reading that the majority treats not just as an arguable interpretation of Schmerber but as its unchallenged holding.
In cases involving the more serious offense of criminal vehicular operation (or homicide), our supreme court has long held that police need not resort to the implied-consent statute, or otherwise obtain the driver’s consent, in order to constitutionally obtain a blood sample without a warrant. See State v. Speak, 339 N.W.2d 741, 744-45 (Minn. 1983); Aguirre, 295 N.W.2d at 82. In none of these cases has the supreme court held that the exigency of obtaining a blood sample depends on the degree of the driver’s apparent intoxication, the distance from a hospital, or the logistics of obtaining a telephonic search warrant, some of the factors cited by the majority. Requiring police officers to balance such factors on the scene poses an impossible burden.
Assessing the relevant “exigency” factors is not an easy task even for a court. For example, the driver’s apparent degree of intoxication is not as relevant as the majority suggests. The supreme court has emphasized that an officer need not have probable cause to believe that a driver is intoxicated in order to have blood drawn, only “probable cause to believe that administration of a blood alcohol test will result in the discovery of evidence relevant in the prosecution of a crime.” State v. Lee, 585 N.W.2d 378, 382 (Minn. 1998). And a driver cannot be too drunk for her alcohol concentration to be relevant evidence. The officer at the scene cannot gauge a driver’s alcohol concentration or know whether a prosecutor would prefer to charge her with negligent driving while impaired or negligent driving with an alcohol concentration over .08. The exigency exists because “the removal of the blood is necessary to preserve evidence,” Tyler, 368 N.W.2d at 278, not because the driver’s intoxication is a close question.
In summary, there is a bright-line rule that the majority opinion obscures. The obscuring of that line will cause confusion for the police. See State v. Schinzing, 342 N.W.2d 105, 109 (Minn. 1983) (noting that requiring case-by-case assessment of whether police can ask for a driver’s license “would create unnecessary confusion among the police”). Police officers should not have to balance likely intoxication levels against the logistics of telephonic warrants at the scene of a serious accident.
 We note that five charges remained against Shriner. The parties do not argue and we do not consider whether the suppression order has a critical impact on those charges or whether the survival of those charges is relevant to the critical-impact question. We also note that this court has adopted the view that “even an order dismissing only one count of a multi-count complaint may have critical impact.” State v. Koenig, 649 N.W.2d 484, 487 (Minn. App. 2002).
 We emphasize that no implied-consent advisory was given to respondent and that we do not consider Minn. Stat. §§ 169A.50 - .53 (2006).
 “Generally, the rate by which an individual eliminates alcohol from his [or her] body is 0.015% per hour.” Kimberly S. Keller, Sobering up Daubert: Recent Issues Arising in Alcohol-Related Expert Testimony, 46 S. Tex. L. Rev. 111, 125 (2004).