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Dale v. State (6/12/2009) ap-2219

Dale v. State (6/12/2009) ap-2219

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
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) Court of Appeals No. A-9834
Appellant, ) Trial Court No. 3PA-05-02725 CR
v. ) O P I N I O N
Appellee. ) No. 2219 June 12, 2009
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:   Christine  S.  Schleuss,   Law
          Office of Christine Schleuss, Anchorage,  for
          the   Appellant.    Kenneth  M.   Rosenstein,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          COATS,  Chief Judge.

          Jimmie Dale drove his truck off the road and down a 100-
foot  embankment,  causing serious physical  injury  to  the  two
passengers in his car.  Dale was charged with driving  under  the
influence,1 driving while his license was suspended,2 two  counts
of  first-degree assault3 against the two passengers, two  counts
          of third-degree assault4 against the same passengers, and failing
to  remain  on  the scene and render aid after  a  motor  vehicle
accident.5   Dale moved to suppress the results of a  blood  test
from  a  blood sample that the police required him to provide  at
the  hospital after the accident.  Dale argued that  because  his
blood was taken without his consent and without a search warrant,
it  was  taken  in  violation  of  his  right  to  be  free  from
unreasonable  searches and seizures under the United  States  and
Alaska Constitutions.6
          Superior Court Judge Eric Smith denied Dales motion  to
suppress.   Although Judge Smith concluded that there was  enough
time  for  the  investigating trooper to call  a  magistrate  and
obtain a warrant, he held that exigent circumstances exist  as  a
matter of law when an officer has sufficient probable cause under
AS  28.35.031(g) and State v. Blank7 to search for intoxicants in
a  persons  body.  We affirm Judge Smiths decision  that  exigent
circumstances existed as a matter of law.

     Factual and procedural background
          On  October 4, 2005, at approximately 10:45 p.m.,  Dale
drove  off  the  road and down a 100-foot embankment  in  Palmer.
There were two women in the truck with Dale  Lori Osborn and Leah
Bradford.   Alaska State Trooper Gregory Pealatere  and  Sergeant
Troy  Shuey  responded to the scene.  By the time  they  arrived,
emergency medical personnel were already at the scene.  They told
Trooper  Pealatere that the women in the car had  been  seriously
injured and had stated that Jimmie Dale was the driver of the car
and had left on foot.  Sergeant Shuey found Dale a short distance
away.   Dale  was  swaying as he talked to  Sergeant  Shuey,  his
speech  was slurred, and he had bloodshot, watery eyes.  Sergeant
Shuey could smell alcohol on Dale and was certain that [Dale] had
been drinking alcohol at some point during the evening.  Dale was
taken to the hospital with Osborn and Bradford.
          Trooper  Pealatere and Sergeant Shuey investigated  and
documented  the  scene of the accident.  After investigating  the
scene  of  the  accident,  Trooper  Pealatere  proceeded  to  the
hospital, where he interviewed Bradford at about 1:04  a.m.   The
trooper  estimated that the interview with Bradford lasted  about
five  to  ten  minutes.  At some point in  the  next  half  hour,
Trooper  Pealatere spoke with Sergeant Shuey, and they determined
that  Dale  was intoxicated and was the driver of a vehicle  that
had  been  involved in an accident that caused  serious  physical
injury  to  the passengers, and that they had probable  cause  to
arrest  him  at  that  time.  Sergeant Shuey  instructed  Trooper
Pealatere to get a blood sample from Dale, by force if necessary.
Sergeant  Shuey  told Trooper Pealatere that a  warrant  was  not
necessary  because AS 28.35.031(g), the implied-consent  statute,
authorized  the blood draw, so Trooper Pealatere did not  attempt
to obtain a warrant before instructing the hospital staff to take
a blood sample from Dale.  The blood sample was taken around 2:00
a.m.   The results indicated that Dale had a blood-alcohol  level
between .07 and .08 when he was tested.
          Before  trial, Dale moved to suppress the  evidence  of
the  blood test, contending that it was taken in violation of his
          constitutional right to be free from unreasonable searches and
seizures.    After  an  evidentiary  hearing  at  which   Trooper
Pealatere  testified, Judge Smith issued an order  denying  Dales
motion to suppress.  Judge Smith found that Trooper Pealatere had
enough  time  to call a magistrate, that he probably  could  have
obtained a search warrant by telephone in about twenty to  thirty
minutes,  and  that, had he done so, Dales blood  probably  would
have  been  drawn at about the same time.  However,  Judge  Smith
found  that exigent circumstances existed as a matter of law  and
the  police  accordingly did not have to obtain a warrant  before
having  Dales blood drawn.  He therefore denied Dales  motion  to
suppress the results of the blood test.
          A  jury  convicted  Dale of all of the  charges.   Dale
appeals  Judge Smiths denial of his motion to suppress.  He  asks
this  court  to  reverse  all  of  his  convictions  except   his
conviction for driving while his license was suspended.

     Legal   background  of  the  question  whether  exigent
     circumstances exist as a matter of law in blood-alcohol
          We   begin   our  legal  analysis  with  Schmerber   v.
California,8 a case decided by the United States Supreme Court in
1966.   Schmerber upheld the seizure of blood  without a  warrant
under   the  exigent  circumstances  exception  to  the   warrant
requirement.   Schmerber has led to two opposing  interpretations
by various state supreme courts.  Some states have concluded that
Schmerber holds that investigating officers are never required to
obtain  a  warrant  when  sufficient  probable  cause  exists  in
suspected drunk-driving cases and the method used to extract  the
suspects  blood  is reasonable.9  Other states  have  interpreted
Schmerber  to  require  a  case-specific  analysis,  taking  into
consideration  the totality of the circumstances  in  determining
whether exigent circumstances exist, before the police can  seize
a persons blood without a warrant.10
          In  the  leading Alaska case on this subject, Blank  v.
State,11  the  Alaska  Supreme Court  declined  to  decide  which
interpretation of Schmerber was correct.

          Schmerber v. California
          In Schmerber, the United States Supreme Court held that
a  compulsory  blood  test is a seizure  covered  by  the  Fourth
Amendment.12   Schmerber  was  convicted  of  DUI  after  he  was
involved  in  a  single-car  accident  and  transported  to   the
hospital.13   At  the hospital, Schmerber was  arrested  and  the
police  ordered a blood test, which revealed that  Schmerber  had
been  drinking.14  After holding that the blood  test  implicated
Schmerbers  Fourth  Amendment rights, the United  States  Supreme
Court  went  on to analyze whether the police were  justified  in
requiring  [Schmerber] to submit to the blood test,  and  whether
the  means  and procedures employed in taking his blood respected
relevant Fourth Amendment standards of reasonableness.15
          Although Schmerber had been placed under arrest  before
his  blood was drawn, the Supreme Court concluded that  the  mere
          fact of a lawful arrest does not end our inquiry.16  The Court
noted  that the justifications for searches incident to a  lawful
arrest   had  little  applicability  with  respect  to   searches
involving  intrusions  beyond the bodys surface,  and  held  that
[t]he  interests  in human dignity and privacy protected  by  the
Fourth  Amendment require a clear indication that evidence  of  a
crime will be found before such an intrusion can be justified.17
          The  Supreme  Court  went  on to  discuss  the  warrant
requirement.   Noting that search warrants are normally  required
for  searches of homes, the Court held that absent an  emergency,
no  less  could be required where intrusions into the human  body
are concerned.18  The Court noted that the purpose of the warrant
requirement  to ensure that the decision to search is made  by  a
neutral  magistrate  is indisputable and great in the context  of
intrusions into a persons body.19
          Nevertheless, the Supreme Court went on  to  find  that
the exigent circumstances exception applied in Schmerbers case:
               The   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    petitioners
As  noted  above,  this language has led to two  interpretations.
The  first  interpretation  is that, because  the  percentage  of
alcohol  in  the blood begins to diminish shortly after  drinking
stops,  this circumstance alone creates an exigency.   The  other
interpretation is that the State must show, under a  totality  of
the  circumstances test, that an exigency existed in  a  specific
case.   In  the second approach, the fact that the percentage  of
alcohol  in  the  blood is diminishing is merely  one  factor  to
consider in determining whether there were exigent circumstances.

          Alaska Authority: Blank v. State
          In   Blank   v.  State,21  the  Alaska  Supreme   Court
interpreted  AS 28.35.031(g), which provides that  a  person  who
operates a motor vehicle is considered to have given consent to a
chemical  test of his breath, blood, and urine if he is  involved
in a motor vehicle accident that causes death or serious physical
injury to another person.22
          The supreme court construed AS 28.35.031(g) narrowly in
order to avoid constitutional problems.23  The court held that AS
28.35.031(g) is constitutional in context of warrantless searches
for  breath or blood in accident cases involving death or serious
physical  injury  when probable cause to search  exists  and  the
search  falls  within  a  recognized  exception  to  the  warrant
requirement,  such  as  the  exigent  circumstances  exception.24
Thus,  the supreme court construed AS 28.35.031(g) to incorporate
the requirements outlined in Schmerber.
          The   court   declined   to  decide   whether   exigent
circumstances justified the warrantless breath test  in  Blank.25
It  remanded  the  case  for  the superior  court  to  make  that
determination.26  While noting that [m]any courts have implicitly
or explicitly held that the dissipation of alcohol always creates
sufficient exigency to dispense with the warrant requirement, the
court  declined to address that question because no  lower  court
[had]   yet  reached  the  issue  whether  exigent  circumstances
actually justified [the] search [in this case].27
          Justices Matthews and Carpeneti dissented, stating that
they would hold that exigent circumstances existed as a matter of
law, but only when, as here, the search in question [was] no more
intrusive than a breath test.28  After citing numerous cases from
other  jurisdictions,  the  dissenting  justices  outlined   four
reasons  for their position: (1) the physiological fact that  the
body  steadily and rapidly eliminates alcohol; (2)  the  ease  of
applying such a bright-line rule, as opposed to the difficulty of
determining  whether  a  warrant  application  might  have   been
prepared and presented to a judge in time for a warrant  to  have
issued and a test conducted before alcohol levels were diminished
beyond  the  limits  of  reliable testing;  (3)  the  categorical
approach  to body alcohol evidence under an exigent circumstances
exception used by the court in Anchorage v. Geber;29 and (4)  the
fact  that  breath searches may be issued without a  case-by-case
exigency  determination  in garden variety  drunk  driving  cases
under  AS  28.35.031(a).30  The dissent also quoted the Court  of
Appeals for the Fourth Circuit, which noted that [s]ociety has  a
recognized  interest  in  protecting  its  citizens  from   drunk
drivers,  and that [b]reathalyzer tests cause a lesser  intrusion
than blood tests.31
          Dale argues that the majority opinion in Blank requires
a fact-specific analysis of whether exigent circumstances existed
in  his  case.   We, however, think another explanation  is  more
likely.  Rather than decide a difficult constitutional issue upon
which courts were split, the supreme court remanded the case  for
the   trial  court  to  determine  whether  there  were   exigent
circumstances for obtaining the breath test in Blanks  case.   If
the  lower  court determined that exigent circumstances  existed,
there would be no need to decide the constitutional issue.
          We  also  note  that  the dissent  in  Blank,  although
advocating  the  view  that exigent circumstances  existed  as  a
matter  of  law, did a balancing test in which it emphasized  the
minimal  intrusion caused by a breath test as opposed to a  blood

     Why  we  conclude that there were exigent circumstances
     here as a matter of law
          In  Dales  case, Judge Smith concluded that  there  was
enough  time  for the investigating trooper to call a  magistrate
and  obtain  a warrant before drawing Dales blood.  We  therefore
find ourselves confronted with the constitutional issue that  the
supreme  court  did not have to decide in Blank.  When  a  police
officer has probable cause to believe that a person was operating
a  motor  vehicle  that was involved in an accident  that  caused
death  or  serious  physical injury to another  person,  and  has
probable cause to believe that the person was operating the motor
vehicle  while under the influence of drugs or alcohol, can  that
officer require the person to provide a sample of his blood?   In
other words, can an officer constitutionally require a suspect to
provide  a  blood  sample  under AS  28.35.031(g)  without  first
obtaining   a   warrant   or   showing   case-specific    exigent
circumstances  apart  from the fact that  blood-alcohol  evidence
dissipates over time?
          We  have  examined many cases that mention  or  discuss
this  issue, but we focus on one recent case, State v. Shriner,32
in  answering this question.  In that case, the defendant,  while
highly  intoxicated,  caused  a motor-vehicle  accident  and  was
charged  under  a  Minnesota  statute that  criminalized  causing
injury  to  another person by operating a motor vehicle  with  an
alcohol concentration of .08 or more as measured within two hours
of the time of driving or operating the vehicle negligently while
under  the  influence of alcohol.33  The Minnesota Supreme  Court
held that:
          [W]hen   [law   enforcement]  officers   have
          probable   cause  to  believe   a   defendant
          [violated the statute], it is important  that
          the defendants blood be tested within 2 hours
          of  the  accident causing injury  to  or  the
          death  of  another.  ... The  rapid,  natural
          dissipation  of alcohol in the blood  creates
          single-factor exigent circumstances that will
          justify  the  police  taking  a  warrantless,
          nonconsensual    blood    draw     from     a
          defendant ... .[34]
          In  reaching  this  conclusion, the  Minnesota  Supreme
Court carefully analyzed Schmerber and other opinions.  The court
concluded  that its decision was in accord with  the  view  of  a
majority  of  the  courts that had considered the  issue.35   The
court  also considered the burden on law enforcement of obtaining
a warrant:
               Further,  requiring law  enforcement  to
          consider other factors places an unreasonable
          burden  on  law  enforcement.  For  instance,
          though  the officer may be familiar with  the
          area  in  which  the accident  occurred,  the
          officer has no control over how long it would
          take  to  travel  to a judge  or  the  judges
               availability.  The officer also may not know
          the  time  of  the suspects last  drink,  the
          amount  of alcohol consumed, or the  rate  at
          which  the  suspect will metabolize  alcohol.
          Finally, an officer cannot know how  long  it
          will take to obtain the blood sample once the
          suspect is brought to the hospital.  Under  a
          totality   of  the  circumstances  test,   an
          officer would be called upon to speculate  on
          each of these considerations and predict  how
          long  the  most  probative  evidence  of  the
          defendants blood alcohol level would continue
          to  exist before a blood sample was no longer
The court also directly addressed the possibility of obtaining  a
telephonic warrant:
          Shriner also contends that police may  obtain
          telephonic  warrants quickly and,  therefore,
          the  police  can easily obtain  the  relevant
          evidence  they  need  with  a  warrant.   Put
          another way, Shriner contends that the use of
          telephonic   warrants  makes   any   exigency
          disappear because the police will be able  to
          obtain   a  blood  sample  well  before   the
          evidence  is  entirely gone. But the  officer
          facing  the  need  for a  telephonic  warrant
          cannot  be  expected to know how  much  delay
          will  be  caused by following the  procedures
          necessary to obtain a warrant. And during the
          time taken to obtain a telephonic warrant, it
          is  undisputed  that the defendants  body  is
          rapidly  metabolizing  and  dissipating   the
          alcohol  in the defendants blood. We  do  not
          believe  that the possibility of obtaining  a
          telephonic warrant is sufficient to  overcome
          the  single-factor exigent  circumstances  of
          the  rapid  dissipation  of  alcohol  in  the
          defendants blood in this case.[37]
We  agree  with the reasoning of the Minnesota Supreme  Court  in
          Dales case, likewise, is not about a routine arrest for
driving  under  the influence.  Alaska Statute 28.31.031(g)  only
authorizes   law  enforcement  to  obtain  a  blood   sample   in
circumstances that involve a motor-vehicle accident  that  causes
death  or serious physical injury.  We believe that the Minnesota
Supreme  Court  in Shriner made a strong argument for  concluding
that,  when  a  case involves death or serious  physical  injury,
exigent circumstances exist as a matter of law.

          We  accordingly  conclude that  Judge  Smith  correctly
ruled  that exigent circumstances authorized the police to obtain
          a nonconsensual, warrantless sample of Dales blood.  Judge Smith
did not err in denying Dales motion to suppress.
          The judgment of the superior court is AFFIRMED.
     1 AS 28.35.030(a).

     2 AS 28.15.291(a)(1).

     3 AS 11.41.200(a)(1).

4 AS 11.41.220(a)(1)(B).

     5 AS 28.35.050(a); AS 28.35.060(a).

     6 U.S. Const. amend. IV; Alaska Const. art. I,  14.

     7  90 P.3d 156 (Alaska 2004) (construing AS 28.35.031(g)  to
include   the   three  requirements  outlined  in  Schmerber   v.
California, 384 U.S. 757, 770-72, 86 S. Ct. 1826, 1835-36, 16  L.
Ed.  2d  908  (1966):   (1)  probable  cause  to  search,  (2)  a
recognized  exception  to  the  warrant  requirement,   and   (3)
reasonable procedures).

8 384 U.S. 757, 86 S. Ct. 1826.

     9  See,  e.g.,  People v. Ritchie, 181 Cal. Rptr.  773,  774
(Cal.  App. 1982) (noting in dicta that the dissipation of  blood
alcohol evidence over time is a special factor that triggers  ...
warrantless intrusion into the body); State v. Entrekin, 47  P.3d
336,  348  (Haw.  2002) (stating that exigent circumstances  were
clearly  present  because alcohol dissipates  from  bloodstream);
State v. Woolery, 775 P.2d 1210, 1212 (Idaho 1989) (stating  that
dissipation  of  alcohol in blood creates  an  inherent  exigency
which  justifies [a] warrantless search); DeVaney v.  State,  288
N.E.2d  732,  735 (Ind. 1972) (holding that exigent circumstances
were  present  because  evidence of blood-alcohol  content  could
disappear  during the time necessary to obtain a warrant);  State
v.  Baker, 502 A.2d 489, 493 (Me. 1985) (The bodily process  that
eliminates alcohol also provides exigent circumstances  obviating
the  need  to  obtain  a warrant prior to administering  a  blood
test.);  Gregg  v.  State,  374 So. 2d 1301,  1303  (Miss.  1979)
(finding that an emergency situation existed because of potential
for loss of critical evidence); State v. Lerette, 858 S.W.2d 816,
819  (Mo.  App.  1993) (holding that exigent  circumstances  were
created by dissipation of blood-alcohol content in time needed to
obtain  a  warrant); State v. Ravotto, 777 A.2d  301,  315  (N.J.
2001)  (stating  that  the  dissipating nature  of  blood-alcohol
creates   an   exigency   justifying   a   warrantless   search);
Commonwealth  v.  Anderl, 477 A.2d 1356, 1364 (Pa.  Super.  1984)
(upholding  warrantless breathalyzer test as valid  either  as  a
search incident to arrest ... or a search necessitated by exigent
circumstances;  i.e., the evanescent nature  of  the  alcohol  in
[defendants] bloodstream); State v. Humphreys, 70 S.W.3d 752, 760-
61  (Tenn. Crim. App. 2001) (Based upon the fact that evidence of
blood  alcohol content begins to diminish shortly after  drinking
stops,  a compulsory breath or blood test, taken with or  without
the  consent of the donor, falls within the exigent circumstances
exception  to  the  warrant requirement.); Aliff  v.  State,  627
S.W.2d  166, 170 (Tex. Crim. App. 1982) (holding that warrantless
blood  draw did not violate the defendants constitutional  rights
and  citing  as only exigency the fact that alcohol in  blood  is
quickly  consumed and the evidence would be lost forever);  State
v.  Bohling,  494  N.W.2d  399  (Wis.  1993)  (holding  that  the
dissipation of alcohol from a persons blood stream constitutes  a
sufficient exigency to justify a warrantless blood draw).

     10    See,  e.g.,  People v. Shepherd, 906 P.2d  607  (Colo.
1995)  (holding that exigency exists when time has elapsed  while
the  driver  is transported to the hospital and the investigating
officer is detained at the accident scene); State v. Johnson, 744
N.W.2d   340,   344  (Iowa  2008)  (holding  that   blood-alcohol
dissipation does not create a per se exigency with respect to the
warrant requirement); State v. Moylett, 836 P.2d 1329, 1335  (Or.
1992) (relying mainly on the Oregon Constitution in declining  to
hold  that  blood-alcohol dissipation creates a per se exigency);
Bristol  v. Commonwealth, 636 S.E.2d 460, 464 (Va. 2006) (holding
that  blood alcohol dissipation was not sufficient by  itself  to
create  an  exigent circumstances exception to Virginia statutory
requirement that the driver be arrested within three hours of the

     11   90 P.3d 156.

     12   Schmerber, 384 U.S. at 767, 86 S. Ct. at 1834.

     13   Id. at 758 n.2, 86 S. Ct. at 1829 n.2.

     14   Id. at 758-59, 86 S. Ct. at 1829.

     15   Id. at 768, 86 S. Ct. at 1834.

     16   Id. at 769, 86 S. Ct. at 1835.

     17   Id. at 769-70, 86 S. Ct. at 1835.

     18   Id. at 770, 86 S. Ct. at 1835.

     19   Id.

     20    Id.  at 770, 86 S. Ct. at 1835-36 (quoting Preston  v.
United  States, 376 U.S. 364, 367, 84 S. Ct. 882, 883, 11 L.  Ed.
2d 777 (1964)).

     21   90 P.3d 156.

     22    Id. at 161-62.  Serious physical injury is defined  in
AS 28.90.990(a)(24) and AS 11.81.900(b)(56) as:

       [P]hysical injury caused by an act performed under
       circumstances  that create a substantial  risk  of
       death  ... or physical injury that causes  serious
       and     protracted    disfigurement,    protracted
       impairment   of   health,   protracted   loss   or
       impairment  of  the function of a body  member  or
       organ, or that unlawfully terminates a pregnancy.
     23   Blank, 90 P.3d at 162.

     24   Id.

     25   Id. at 164.

     26   Id.

     27   Id. at 164.

     28   Id. at 165 (Matthews, J., dissenting).

     29   592 P.2d 1187 (Alaska 1979).

     30   Blank, 90 P.3d at 164-67 (Matthews, J., dissenting).

     31    Id.  at 167 (quoting United States v. Reid,  929  F.2d
990, 994 (4th Cir. 1991)).

32   751 N.W.2d 538 (Minn. 2008).

     33    Id.  at  542  n.4  (quoting Minn. Stat.   609.21(1-2b)

     34   Id. at 545 (footnotes omitted).

     35   Id. at 547.

36   Id. at 549 (footnote omitted).

     37   Id. (footnote omitted).

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