This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-2018

 

 

State of Minnesota,

Respondent,

 

vs.

 

Lucas David Tatro,

Appellant.

 

 

Filed July 1, 2003

Affirmed

Robert H. Schumacher, Judge

 

Isanti County District Court

File No. K399596

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Jeffrey R. Edblad, Isanti County Attorney, Thad N. Tudor, Assistant County Attorney, 555-18th Avenue Southwest, Cambridge, MN 55008 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Lucas David Tatro contends that the district court erred by refusing to suppress the results of a blood-alcohol test administered at the direction of a police officer, without Tatro's consent and without the reading of the implied consent advisory, while Tatro was in the hospital. Tatro argues that the requisite exigent circumstances did not exist to justify the blood test and that the police officer's selective use of the implied consent advisory violated his due process rights. We affirm.

FACTS

Tatro was arrested on January 8, 1999, in Isanti County following the report of a one-car accident. At 9:55 p.m., Deputy Robert Bowker of the Isanti County Sheriff's Department found the car in a ditch along a county road. Tatro was found unconscious in the driver's seat. Tatro's passenger had fled on foot, and he was later apprehended. Bowker observed several open beer cans and bottles strewn throughout the vehicle. Isanti County safety and rescue workers transported Tatro to the hospital.

Bowker had a blood kit and Implied Consent Advisory when he spoke to Tatro in the hospital. Bowker testified that Tatro was uncooperative, did not give Bowker his correct name, and refused to discuss the accident. Bowker filled out the implied consent advisory form but did not read it to Tatro. Bowker testified that he did not know the extent of Tatro's injuries but observed that one of Tatro's eyes was dilated. Bowker believed this was the result of the current accident and that it indicated Tatro had suffered a severe head injury. Tatro's dilated eye was a permanent condition that was the result of a previous accident. Tatro refused to discuss the accident in question with Bowker. The district court specifically found that Bowker's assumption, while inaccurate, was reasonable. Bowker also believed that Tatro might need "medical attention that could last an unknown period of time." Bowker instructed hospital personnel to extract blood from Tatro for testing. The test indicated Tatro's blood-alcohol content at .27.

The district court denied Tatro's motion to suppress the results of the test. Tatro waived his right to a jury trial and submitted the matter to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found Tatro guilty as charged. Tatro appeals from the judgment of conviction, arguing that the district court should have suppressed the results of the blood-alcohol test because exigent circumstances did not exist to justify the blood test without reading the implied consent advisory or that a remand is necessary for findings regarding whether his due process rights were violated.

D E C I S I O N

A suppression order is reviewed as a matter of law when the facts are not in dispute. The appellate court independently reviews the facts and determines whether the evidence should be suppressed. State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996);State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

1. The warrantless removal of blood for a blood alcohol test is clearly permitted when police have probable cause to believe an individual has committed a DWI offense and the removal of blood is needed to preserve evidence. State v. Schauer, 501 N.W.2d 673, 675 (Minn. App. 1993); see also Paul, 548 N.W.2d at 266-67 (allowing warrantless entry into individual's home, when officer suspected DWI offense had been committed and was in "hot pursuit," in order to preserve evidence of offense by way of blood-alcohol testing). The courts have recognized as an exigent circumstance the need to preserve the most probative evidence of the DWI offense. Paul, 548 N.W.2d at 266 (citing Schmerber v. California, 348 U.S. 757, 770, 86 S. Ct. 1826, 1836 (1966)). The warrantless removal of blood may be necessary "to prevent the destruction of the most probative evidence of [the perpetrator's] offense, noting that 'the percentage of alcohol in the blood begins to diminish shortly after drinking stops.'" Id. at 267 (quoting Schmerber, 348 U.S. at 770, 86 S. Ct. at 1836).

Essentially, Tatro argues for a policy-based reversal of valid precedent. Tatro contends that "the possible dissipation of blood alcohol does not, by itself, create a sufficient exigency to satisfy the Fourth Amendment." Tatro argues that if exigent circumstances can be established simply by pointing to the potential dissipation of blood alcohol over time, the police could bypass the implied consent procedure in all DWI cases.

Tatro's analysis of the case law relating to the dissipation of blood-alcohol is inaccurate. The cases do not hold that the passage of time, by itself, would create the requisite exigent circumstances justifying a blood test without consent. The case at bar is similar to Paul and Schauer. The passage of time here was not the only factor indicating the requisite "exigent circumstances." The sheriff's deputy reasonably believed that Tatro might be unavailable for an extended period of time in order to receive medical treatment. Tatro's assertion that the implied consent advisory and process is being abrogated is incorrect.

2. Tatro claims Bowker was allowed to exercise his "unfettered discretion selectively" in determining whether or not to use the implied consent advisory, such that Tatro's due process rights were violated. Tatro points to dicta in the Schauer case, stating that a law enforcement officer's selective use of the advisory might violate a driver's due process rights. The Schauer court recognized, however, that "the problems involved in a selective use of the implied consent advisory must await the proper case." 501 N.W.2d at 676. Indeed, in Schauer, this court recognized that despite the fact that no attempt was made to read the implied consent advisory, the results of a blood test may be used in prosecuting a DWI offense under the plain language of Minn. Stat. 169.121, subd. 2 (2002). Id. at 677.

Moreover, the supreme court has recognized that when circumstances make the reading of the implied consent advisory a futile act, the officer may forego the advisory and order a blood test. See, e.g. State, Dep't of Pub. Safety v. Hauge, 286 N.W.2d 727, 728 (Minn. 1979); see also Stiles v. Comm'r of Pub. Safety, 369 N.W.2d 347, 352 (Minn. App. 1985) (when officer reasonably believes driver to be disoriented, officer should deem implied consent to be continuing and order test). In the present case, Tatro refused to discuss the incident, would not give the officer his correct name, and was otherwise uncooperative. The officer reasonably concluded that a reading of the implied consent advisory would be futile. Furthermore, the officer had reasonable ground to believe that the removal of blood was needed to preserve evidence.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.