This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Aaron Ray Keocher,



Filed August 5, 2003


Halbrooks, Judge



Isanti County District Court

File No. K802766


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


Jeffrey Edblad, Isanti County Attorney, Thad N. Tudor, Thomas D. Wedes, Assistant County Attorneys, 555 18th Avenue S.W., Cambridge, MN 55008 (for appellant)


Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for respondent)


            Considered and decided by Anderson, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant argues that the trial court erred in concluding that the warrantless seizure of respondent’s blood for testing was not supported by exigent circumstances.  Because we conclude that under the facts present, there was insufficient proof of exigent circumstances, we affirm.


            At approximately 12:10 a.m. on June 1, 2002, Deputy Gregory Mark Kranz was dispatched to a single-car accident.  Upon his arrival, Deputy Kranz determined that the vehicle involved belonged to respondent Aaron Ray Keocher.  Deputy Kranz located Keocher in an ambulance, approximately one-quarter mile from the accident scene.  Keocher was conscious but bleeding from his head and hands.  Keocher’s breath smelled of alcohol, and he had bloodshot eyes and slurred speech.  While Keocher initially stated that he did not want medical attention, he subsequently agreed to go to the emergency room after Deputy Kranz advised Keocher that he would take him back to the law enforcement center to administer a test for alcohol concentration if he did not go to the hospital. 

When Deputy Kranz arrived at the hospital, he directed an emergency-room worker to draw blood from Keocher for alcohol-concentration testing.  Prior to requesting that the sample be drawn, Deputy Kranz had not invoked the implied-consent advisory, had not talked to Keocher to ask if he would consent to having his blood taken, and did not know the type or duration of treatment that Keocher would receive at the hospital.  Subsequent testing of Keocher’s blood showed a .24 alcohol concentration.

At the omnibus hearing, Keocher stipulated that the officer had probable cause to believe that he was under the influence of alcohol.  In the pretrial order suppressing the test result, the district court concluded that the deputy had probable cause to believe that Keocher was driving under the influence of alcohol but that there were no exigent circumstances to justify a warrantless removal of Keocher’s blood.  The district court stated:

In the State’s case against Aaron Ray Keocher, there is no evidence of exigent circumstances or, in the words of Schmerber, evidence that the officer “might have reasonably believed that he was confronted with an emergency.”


Keocher’s motion for dismissal was granted.  This appeal by the state follows.


            The state argues that the district court erred in concluding that the warrantless seizure of Keocher’s blood for alcohol-content testing was not supported by exigent circumstances.  Specifically, the state contends that Keocher’s hospitalization coupled with the evanescent nature of blood-alcohol evidence created the exigent circumstances justifying the warrantless removal of blood.

            Appellate courts may reverse a pretrial decision by the district court to suppress evidence only when the state clearly demonstrates that the district court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.  State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977).  Suppressing a chemical test has critical impact, even in DWI cases where the state has non-test-related evidence of intoxication.  State v. Ault, 478 N.W.2d 797, 799 (Minn. App. 1991).  When the facts are not in dispute and the district court’s decision is a matter of law, appellate courts may “independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.”  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

            In a pivotal decision, the United States Supreme Court recognized that the drawing of blood is considered a seizure that must comply with the Fourth Amendment of the federal Constitution.  Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966).  In order for a warrantless nonconsensual removal of blood to be constitutional, there must be a finding of probable cause and a finding of exigent circumstances.  State v. Aguirre, 295 N.W.2d 79, 81 (Minn. 1980).

The United States Supreme Court has determined that exigent circumstances exist in cases of hot pursuit, danger to human life, imminent destruction of evanescent evidence, and possible flight of a suspect. 


State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996) (citing State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984)).  In Schmerber, the Supreme Court concluded that exigent circumstances were present, reasoning that

[t]he officer in the present case, however, 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.  Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to [the accused’s] arrest.


Schmerber, 384 U.S. at 770-71, 86 S. Ct. at 1835-36 (internal citation omitted).[1]

            In determining whether exigent circumstances are present, Minnesota courts have similarly noted such factors as the evanescent nature of alcohol in the blood, the passage of time, and the potential unavailability of a defendant once taken to a hospital for treatment.  State v. Oevering, 268 N.W.2d 68, 74 (Minn. 1978) (finding exigent circumstances because four hours had passed since the collision occurred and defendant was taken to the hospital where blood was drawn, and “normal physiological functions eliminate the alcohol content from an inebriate’s blood”).  But when determining the existence of exigent circumstances, the court’s inquiry should include an examination of the totality of circumstances.  Lohnes, 344 N.W.2d at 611.  Here, because Keocher stipulated that the deputy had probable cause, the sole issue is whether the destruction of evanescent evidence was imminent. 

The state contends that State v. Schauer, 501 N.W.2d 673 (Minn. App. 1993), is controlling because its facts are nearly identical to this matter.  Schauer involved a single-car accident and the responding officer observed several indicia of intoxication in the defendant.  Id. at 674.  The officer noted that the defendant’s injuries “could be serious,” and the defendant was transported to a hospital.  Id.  The officer ordered blood to be drawn from the defendant at the hospital, but like this case, never gave an implied-consent advisory and never asked for the defendant’s consent for the procedure.  Id.  The defendant conceded that evidence of intoxication rapidly dissipates.  Id. at 675.  This court affirmed, finding no deprivation of constitutional rights.  Id

The state contends that

[t]he most logical reading of Schauer is that defendant’s hospitalization coupled with the rapid dissipation of blood alcohol evidence, created exigent circumstances justifying the warrantless removal of blood.


But the Schauer decision does not reveal the grounds on which the district court found exigent circumstances.  We do not believe that the Schauer decision creates a per se rule that indicia of intoxication coupled with defendant’s treatment at a hospital create exigent circumstances.  Lohnes, 344 N.W.2d at 611 (recognizing that court must focus on all facts and conclude whether there is a need for immediate police action). 

We, therefore, conclude that there was insufficient proof of exigent circumstances before the district court in this case.  The lapse of time between the accident and the time the deputy ordered the blood withdrawal was minimal.[2]  The deputy observed blood on Keocher and some swelling.  But the deputy did not take reasonable steps to determine whether Keocher required prolonged medical care or, alternatively, when he would be released from the ER and subsequently available to the deputy. 


[1]  In Schmerber, two hours had passed between the time of the accident and the time the defendant was taken to the hospital.

[2] The district court made a finding of fact that the blood draw was ordered approximately 30 minutes after the deputy arrived at the accident scene.  We give deference to a trial court’s findings of fact, overturning them only if clearly erroneous.  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996).