This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-2237

State of Minnesota,

Respondent,

vs.

Sherilyn Faye Morical,

Appellant.

Filed July 29, 1997

Affirmed

Harten, Judge

Douglas County District Court

File No. K3-96-57

Hubert H. Humphrey, III, Attorney General, Jessica S. McConaughey, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Allen L. Senstad, Douglas County Attorney, Douglas County Courthouse, 305 8th Avenue West, Alexandria, MN 56308 (for Respondent)

John J. Leunig, The Colonnade, Ste. 1025, 5500 Wayzata Boulevard, Minneapolis, MN 55416 (for Appellant)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Harten, Judge.

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

HARTEN, Judge

This appeal is from a judgment of conviction for criminal vehicular homicide. Minn. Stat. § 609.21, subd. 1(2), (3), (4) (1996). Appellant Sherilyn Morical challenges the warrantless seizure of blood for chemical testing, the state's failure to preserve the vehicles involved in the accident, and the district court's denial of a requested jury instruction. We affirm.

FACTS

A minivan driven by Morical struck a car driven by Lois Johnson in a head-on collision near Alexandria. Lois Johnson died in the accident. A deputy sheriff found Morical in her vehicle; she smelled of alcohol. Morical was taken to the hospital where the deputy ordered a blood test taken. When tested by the Bureau of Criminal Apprehension, the blood sample showed an alcohol concentration of .27.

Morical retained defense counsel to represent her. Defense counsel wrote to the county attorney on December 6, 1995, requesting that if the vehicles might be destroyed, the county attorney notify him "so I can take whatever action is necessary to preserve the vehicles as evidence." On January 3, 1996, the county attorney notified defense counsel by fax that the state's hold on the vehicles was being released that day. Three months later, defense counsel requested information about the location of the vehicles. The county attorney responded by letter stating that the vehicles had been released and giving the names of the salvage yards where they had been taken.

At trial, the state's accident reconstructionist testified that there were skid marks from the victim's vehicle showing that she had braked when she saw that Morical's minivan had crossed over into her lane. There were no skid marks from Morical's vehicle. There were no marks on the roadway indicating that either vehicle had a mechanical problem. The accident reconstructionist testified that the damage to the vehicles was too severe to allow for a proper mechanical inspection.

The district court denied Morical's motion to dismiss the complaint on the ground that the state failed to preserve the vehicles. The district court also denied Morical's request for a jury instruction that the jury could draw an adverse inference from that failure to preserve evidence. The jury found Morical guilty and the district court sentenced her to serve the presumptive term of 48 months.

D E C I S I O N

1. Morical argues that because of the availability of telephonic search warrants the currently recognized exigency rationale to justify the warrantless removal of blood for chemical testing has become obsolete and should not apply; therefore, the blood test should have been suppressed.

It has long been held that the warrantless removal of blood does not violate the Fourth Amendment as long as police have probable cause and there are exigent circumstances justifying the warrantless removal. Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 1835-36 (1966). Exigent circumstances are established by the need to preserve chemical evidence of intoxication, an evanescent form of evidence. See South Dakota v. Neville, 459 U.S. 553, 558-64, 103 S. Ct. 916, 920-23 (1983).

Telephonic search warrants have been used in Minnesota since at least 1980. See State v. Andries, 297 N.W.2d 124 (Minn. 1980) (reviewing issuance of telephonic warrant). They have been used to streamline the warrant procedure in certain circumstances, allowing police to dispense with some of the formal statutory requirements for search warrants. See Andries, 297 N.W.2d at 125-26 (telephonic warrant dispensed with "purely ministerial" task of the judge signing the document). Police access to telephones, particularly in the age of cellular phones, is undisputed, but it has never been held to eliminate the exigent circumstances exception to the warrant requirement. We conclude that Morical's argument, based solely on available technology and without regard for the judicial resources necessary to make numerous (possibly simultaneous) probable cause decisions for police acting in the field, is without merit.

Morical also argues that her Friedman right to counsel was violated by the taking of the blood sample. See Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828 (Minn. 1991). The supreme court in Friedman, however, recognized only a limited right to counsel when the implied consent law forces the driver to decide whether to submit to chemical testing. Id. at 835. Here, the deputy did not proceed under the implied consent law, but under his authority to order a blood sample taken without seeking the driver's consent. See e.g., Tyler v. Commissioner of Pub. Safety, 368 N.W.2d 275, 279-80 (Minn. 1985) (officer who has probable cause to believe driver has committed criminal vehicular operation may order blood test taken without asking driver's consent). Morical had no lawful choice to make that would require the advice of counsel. We therefore conclude that her Friedman right to counsel was not violated.

2. Morical argues that the state violated due process by failing to preserve the two vehicles after its inspection had been completed. We disagree.

On January 3, 1996, the prosecutor notified defense counsel of the prosecution's imminent release of the vehicles, in response to defense counsel's own request, which stated that proper notice would allow him to "take whatever action is necessary to preserve the vehicles as evidence." Defense counsel apparently ignored this notice, and a second notice three months later, instead opting to argue shortly before trial that the case should be dismissed because the prosecutor breached a duty to store the vehicles for defense counsel's use (should he later hire an expert witness who wanted to inspect them). To accept this argument would be to sanction "invited error," as the district court termed it, of the most egregious kind. Moreover, even were we to accept the factual premise for Morical's argument, there is no indication that the state intentionally lost or destroyed the vehicles or that their exculpatory value was apparent. See State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992).

3. Morical argues that the district court abused its discretion in denying his request to instruct the jury that it could draw an inference adverse to the state from the failure to preserve the vehicles. But as Morical acknowledged at trial, this request was premised on the prosecutor being at fault for failing to preserve the vehicles, a premise we reject.

An "adverse inference" instruction is based on a party's failure to present specific witnesses, or other evidence, at trial. See State v. Kindem, 338 N.W.2d 9, 16 (Minn. 1983) (no error in refusing to instruct on state's failure to produce witnesses at trial who were not under state's control); United States v. Burton, 898 F.2d 595, 597-98 (8th Cir. 1990) (no error in failing to give "absent witness" instruction as to informant who was no longer available to the government). It presumes a degree of control over the evidence not present here, particularly at the time of trial, eight months after the state had released its hold on the vehicles and provided notice to defense counsel. The district court did not abuse its discretion in refusing to instruct on "adverse inference."

Affirmed.