Petition for Writ of Certiorari — Shriner v. Minnesota (No. 08-506)

Suprame (Court U.S.

\ 7 @ 08-506 OCT 14 2008

~ OFFICE OF THE CLERK |

In the RK

Supreme Court of the United States

JANET SUE SHRINER,

Petitioner,

v.

STATE OF MINNESOTA,

Respondent.

On Petition for a Writ of Certiorari

from the Supreme Court of the State of Minnesota

PETITION FOR A WRIT OF CERTIORARI

JEFFREY S. SHERIDAN

Counsel of Record

STRANDEMO, SHERIDAN & DULAS, P.A.

320 Eagandale Office Center

1380 Corporate Center Curve

Eagan, Minnesota 55121

(651) 686-8800

Counsel for Petitioner

2008 - Bachman Legal Ponting @ (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053

QUESTIONS PRESENTED FOR REVIEW

Summary

Petitioner was involved in a two-car traffic

accident that resulted in non-life-threatening

injuries to the other driver. Petitioner drove away

from the scene and police stopped her shortly

thereafter. During the stop, police formed the belief

that Petitioner was impaired by alcohol. Police then

transported Petitioner to the hospital and directed

medical staff to draw a blood sample from Petitioner

without obtaining a warrant.

Petitioner stipulated that police had probable

cause to believe evidence of impairment would be

found as a result of testing her blood, but moved to

suppress the test because police did not obtain

Petitioner's consent to draw her blood or show that

exigent circumstances justified taking the blood

without a warrant. The district court found that

there were no exigent circumstances and granted the

motion to suppress. The Minnesota Court of Appeals

affirmed.

In a 5-2 decision, the Minnesota Supreme

Court reversed. The court held that in cases

involving impaired driving, there is no need for the

court to consider the “totality of the circumstances”

in evaluating whether an exigency existed. Instead,

the court concluded that the natural dissipation of

alcohol in the blood creates a “single-factor exigent

circumstance” that will always justify police taking a

warrantless, nonconsensual blood sample.

Question

Does probable cause to believe alcohol is in a

person’s blood create a “single-factor exigent

circumstance” that justifies a warrantless,

nonconsensual seizure of that blood without violating

the Fourth Amendment?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ............ 1

Oe OP Sigs 8) A yh ill

OPINIONS AND ORDERS BELOV. ....................... 1

EEE ee rE mn em RR oe 1

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED ........................... 2

OEM EET. COE PACT. ...........cccccvecscscerecvesesoverses 3

REASONS FOR GRANTING THE PETITION ...... 7

I. The Minnesota Supreme Court has

decided an important federal question

in a way that is inconsistent with other

decisions of this Court. ...................000 7

II. The Minnesota Supreme Court has

decided an important federal question

in a way that conflicts with the

decisions of other states.................... 17

otc dicsicy in vensiemressanenieninovesmeciaentead 19

APPENDIX

Minnesota Supreme Court decision...... App. 1

Minnesota Court of Appeals decision .App. 45

Dakota County District Court Order..App. 63

Minnesota Supreme Court Order ....... App. 74

Minnesota Supreme Court Judgment App. 75

ili

TABLE OF AUTHORITIES

CASES

United States Supreme Court

Arkansas v. Sanders, 442 U.S. 753 (1979) ........2..... 8

Buvens vu. Six Agents, 403 U.S. 388 (1971)............... 8

Boyd v. United States, 116 U.S. 616 (1886)........... 17

Cooper v. California, 386 U.S. 58 (1967)................. 8

Griffin v. Wisconsin, 483 U.S. 868 (1987) ............... 8

Illinois v. Batchelder, 464 U.S. 1112 (1988)............ 7

Johnson v. United States, 333 U.S. 10 (1948)......... 8

Kerr v. California, 374 U.S. 23 (1963)...........0....0.... 7

Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979).8

Michigan v. DeFillippo, 443 U.S. 31 (1979) ............ 7

Mincey v. Arizona, 437 U.S. 385 (1978)............. 8, 15

New Jersey v. T.L.O., 469 U.S.325 (1985) ............... 8

O’Connor v. Ortega, 480 U.S. 709 (1987)................. 8

Preston v. United States, 376 U.S. 364 (1964) ........ 7

Schmerber v. California, 384 U.S. 757 (1966) passim

iv

Schneckloth v. Bustamonte, 412 U.S. 218 (1973).... 7

Skinner v. Railway Labor Executives’ Ass'n,

ME Te. Ge CD rccctaverniganciocescivseriovercions 9

South Dakota v. Neville, 459 U.S. 533 (1983) ......... 7

Standford v. Texas, 379 U.S. 476 (1965)................. 8

ZOrey @. CGO, TEE UID. 3 CISD ovens tnssnccsescccessonesios 8

Torres v. Puerto Rico, 442 U.S. 465 (1979)........0..... 8

United States v. Caceres, 440 U.S. 741 (1979) ........ 9

United States v. Chadwick, 433 U.S. 1 (1977) ........ 7

United States v. Jeffers, 342 U.S. 48 (1951)............ 7

Warden v. Hayden, 387 U.S. 294 (1967).................. 7

Welch v. Wisconsin, 466 U.S. 740 (1984)............... 15

Ybarra v. Illinois, 444 U.S. 85 (1979)...................... 8

Minnesota Courts

State v. Shriner, 739 N.W.2d 432

(ES ey 5 rr 1,6

State v. Shriner, 751 N.W.2d 538

RN I aide estakcencaceecvesss eeisseesenvores 1, 6, 13

Other Jurisdictions

Justice v. State, 552 N.E.2d 844

CRI. Ee, FR I oa coienccersvevitnienesenieuenmenionn 18

People v. Thompson, 135 P.2d 3 (Cal. 2006)

pet. for cert. denied (Oct. 16, 2006) ............. 18

State v. Blank, 90 P.3d 156 (Ak. 2004)........0.00.0.... 18

State v. Bohling, 494 N.W.2d399 (Wis. 2003) ....... 18

State v. Curtis, 680 P.2d 1383

idaho C4. App. 1964) ............00.-0<022-.0s.-s00-.- 18

State v. Flannigan, 978 P.2d 127

(Ariz. Ct. App. 1998) rev. denied

CAwrin. Bilay Be, CG) anncsnncvicwncosesccsvencenscceees 18

State v. Johnson, 744 N.W.2d 340 (lowa 2008)..... 18

State v. Humphreys, 70 S.W.3d 752

Ciena. GA. Fee. BED 5.5. svisicceccesisisncnsasscncens 18

State v. Moylett, 836 P.2d 1329 (Or. 1992)............ 18

State v. Rodriquez, 156 P.3d 771 (Utah 2007) ...... 18

STATUTES

Minn. Stat. § 169A.60-.53 (2006)........................0.-0 4

Minn. Stat. § 1GQA.512 (ZOO) .............2..0...cccccsccescees 4

RULES

Se ee ee . ) eee neeeen eee 13

OPINIONS BELOW

Minnesota Supreme Court

State v. Shriner, 751 N.W.2d 538 (Minn. 2008)

(reproduced at App.1).

Order Denying Rehearing, July 14, 2008

(reproduced at App. 74).

Minnesota Court of Appeals

State v. Shriner, 739 N.W.2d 432 (Minn. Ct.

App. 2007) (reproduced at App. 45)

Trial Court

The trial court’s decision is not published. The

trial court’s order is reproduced in the Appendix at

App. 63.

JURISDICTION

28 U.S.C. § 1257(a)

The Minnesota Supreme Court filed its

opinion on May 30, 2008. Petitioner requested

rehearing and that request was denied on July 14,

2608. The Minnesota Supreme Court entered its

judgment on July 16, 2008. This Court has

jurisdiction under 28 U.S.C. § 1257(a) to review the

decision of a state’s highest court that considers any

title, right, privilege or immunity set up or claimed

under the Constitution of the United States.

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

AMENDMENT IV, UNITED STATES

CONSTITUTION

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

STATEMENT OF FACTS

On May 8, 2006, at 9:26 p.m., Petitioner Janet

Shriner was involved in a car accident when she

drove her car into oncoming trafiic on McAndrews

Road in Burnsville, Minnesota. Petitioner struck

another car, causing non-life-threatening injuries to

the driver of that car. Petitioner then drove away

from the scene of the accident until she was stopped

by Burnsville Police Officer Maksim Yakovlev.

Yakovlev removed Petitioner from her car and

determined that she was uninjured. During this

initial encounter with Petitioner, Yakovlev observed

that her eyes were bloodshot and “glazed over,” that

her clothes were “a little bit messy” and that she

emitted a “strong odor of an alcoholic beverage.”

Having learned from his dispatcher that there were

injuries involved in the accident, Yakovlev believed

he had probable cause that Petitioner had committed

the offense of Criminal Vehicular Operation in

violation of Minn. Stat. § 609.21.

Yakovlev then transported Petitioner to the

local hospital one-half mile away from the location of

the traffic stop. At Yakovlev’s direction, and without

ever attempting to obtain her consent, a blood

sample was taken from Petitioner at 10:11 p.m.,

approximately 30 minutes from the time Petitioner

was last observed driving.

Like most other states, Minnesota has an

“implied consent law” that, when invoked, allows a

driver to either consent to or refuse to submit to an

alcohol concentration test.! Minnesota’s implied

consent law requires the officer to recite a standard

advisory to the driver, give the driver an opportunity

to consult with an attorney and then choose whether

to submit to testing.”

Yakovlev testified that in cases involving

Criminal Vehicular Operation it was the policy of the

Burnsville Police Department to forgo the implied

consent process and simply take a blood test without

attempting to obtain the driver’s consent. Yakovlev

referred to the procedure of obtaining a test outside

the implied consent law as a “Schmerber draw.”

Petitioner moved the district court to suppress

the results of the blood alcohol concentration test on

the ground that it was obtained from Petitioner in

violation of her Fourth Amendment protection

against unreasonable searches and seizures.

Specifically, Petitioner argued that in the absence of

a search warrant, the blood test evidence is

inadmissible unless the state could prove that the

evidence was obtained pursuant to a warrant

exception. The state argued that the evidence was

admissible under the “exigent circumstances’

exception as articulated in this Court’s decision in

Schmerber.

Yakovlev testified that he had no official

responsibilities regarding the accident outside of

dealing with Petitioner’s arrest and testing. He was

1 Minn. Stat. § 169A.50-.53 (2006).

2 Minn. Stat. § 169A.51 (2006).

> Referring to this Court's decision in Schmerber v. California,

384 U.S. 757 (1966).

not needed at the scene to deal with traffic, to tend to

the injured driver of the other vehicle or to conduct

any other type of investigation. In addition,

Petitioner was not injured, so the only procedure she

underwent at the hospital was the withdrawal of her

blood. Accordingly, Yakovlev had no concern that

Petitioner would be taken away for any medical

procedure that might sever his direct contact with

Petitioner or delay the blood draw. In fact,

immediately following the blood draw, Petitioner was

transported by Yakovlev to the Burnsville Police

Station for interrogation and later transported to the

county jail. Yakovlev also testified that he believed

Petitioner was extremely intoxicated, so he had no

concern that she might “slip under the legal limit at

any moment.”

The district court found that the state had

failed to prove there were exigent circumstances that

justified the warrantless search and granted

Petitioner's motion to suppress. In doing so, the

district court found that the circumstances

surrounding the blood draw in this case were

substantially different than those in Schmerber, and

that the state’s assertion that Schmerber created a

“per se exception” to the warrant requirement for

cases involving impaired driving was incorrect.

After ordering the evidence of Petitioner's

alcohol concentration suppressed, the district court

dismissed the two counts of the seven-count

complaint that required the state to prove

Petitioner's alcohol concentration as an element of

the offense. The state, rather than proceeding to

trial on the remaining five counts of the complaint,

chose to appeal this pretrial decision.‘

The Minnesota Court of Appeals affirmed the

district court in a 2-1 decision.5 The Minnesota

Supreme Court accepted discretionary review and, in

a 5-2 decision, reversed the court of appeals.®

Pretrial criminal appeals by the state are allowed in

Minnesota if the state can show that the decision will have a

critical impact on its case. Minn. R. Crim. P. 28.04.

5 State v. Shriner, 739 N.W.2d 432 (Minn. Ct. App. 2007).

6 State v. Shriner, 751 N.W.2d 538 (Minn. 2008).

7

REASONS FOR GRANTING THE PETITION

I. The Minnesota Supreme Court has

decided an important federal question in

a way that is inconsistent with other

decisions of this Court.

The Fourth Amendment to the United States

Constitution provides that:

The right of the people to be secure in

their persons, houses, papers and effects,

against unreasonable searches and

seizures, shall not be violated, and no

Warrants shall issue, but upon probable

cause, supported by Oath or affirmation,

and particularly describing the place to

be searched, and the persons or things to

be seized.

Searches conducted without a warrant are

presumed to be unreasonable.? A warrantlkcss search

is always illegal unless it fits into one of the

narrowly-drawn exceptions to the warrant

requirement, of which there are several: consent,®

search incident to a lawful arrest,? exigent

circumstances with probable cause,!® hot pursuit,!!

7 Preston v. United States, 376 U.S. 364 (1964); United States

v. Jeffers, 342 U.S. 48 (1951).

Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

9 Ker v. California, 374 U.S. 23 (1963); Michigan v. DeFillippo,

443 U.S. 31 (1979).

10 United States v. Chadwick, 433 U.S. 1 (1977); Schmerber,

384 U.S. at 757; South Dakota v. Neville, 459 U.S. 553

(1983); Illinois v. Batchelder, 1463 U.S. 1112 (1983).

1! Warden v. Hayden, 387 U.S. 294 (1967).

stop and frisk!2 and inventory.!3 Beyond these,

warrantless searches may be permissible at

schools,!4 government offices!5 or of persons on

probation.!6

Other general propositions regarding searches

are also worth noting, as they underscore the

jealousy with which the constitutional right to

privacy must be guarded.!” All searches, even those

with warrants, are to be limited narrowly, leaving

nothing to the discretion of executing officers. !8

Warrants must be narrowly interpreted.!9

Exceptions to the warrant requirement are always to

be narrowly construed.2° Statutes cannot undermine

the constitutional protection.2! The Constitution

cannot be subverted in the name of convenience or

efficiency of law enforcement.22 Even emergency

justifications are narrowly circumscribed and strictly

scrutinized.22 The judgment of a neutral magistrate

is always preferable to that of a police officer on the

scene,24 who is engaged in the “competitive

enterprise of ferreting out crime.”25 The careful

regulation of extra-judicial searches enhances the

12 Terry v. Ohio, 392 U.S. 1 (1968).

13 Cooper v. California, 386 U.S. 58 (1967).

14 New Jersey v. T.L.O., 469 U.S. 325 (1985).

15 O’Connor vu. Ortega, 480 U.S. 709 (1987).

16 Griffin v. Wisconsin, 483 U.S. 868 (1987).

(7 Arkansas v. Sanders, 442 U.S. 753 (£979).

18 Stanford v. Texas, 379 U.S. 476 (1965).

19 Bivens v. Six Agents, 403 U.S. 388 (1971).

20 Ybarra v. Illinois, 444 U.S. 85 (1979).

2! Torres v. Puerto Rico, 442 U.S. 465 (1979).

22 Sanders, 442 U.S. at 753.

23 Mincey v. Arizona, 437 U.S. 385 (1978).

24 Lo-di Sales, Inc. v. New York, 442 U.S. 319 (1979)

25 Johnson v. United States, 333 US 10 (1948)

“moral and educative force of the law” and improves

law enforcement as well as protecting basic privacy

rights.?6

This Court has consistently held since 1966

that the collection and analysis of a biological

specimen for purposes of scientific evaluation is a

“search and seizure” entitled to protection under the

Fourth Amendment.27 The Court last considered the

questions raised by a warrantless, non-consensual

blood draw in a case involving impaired driving

forty-two years ago in Schmerber v. California.?8

In that case, Schmerber and his companion

drove off the road and collided with a tree. Officers

arrived on the scene and noted that Schmerber had

an odor of liquor on his breath and that his eyes were

bloodshot, watery and had a glassy appearance.

Both Schmerber and his passenger were then

transported to the hospital for medical treatment.

When the investigating officer concluded his

investigation at the scene, he went to the hospital,

arriving within two hours of the initial call.

When the officer arrived, he advised

Schmerber that he was under arrest and advised him

of his right to counsel. Schmerber called an attorney

and was apparently advised to refuse testing, which

he did. The officer then directed the doctor in the

emergency room to take a blood sample without

Schmerber’s consent and without a warrant.

26 United States v. Caceres, 440 U.S. 741 (1979).

27 See Schmerber, 384 U.S. 757; Skinner v. Ratlway Labor

Fixecutives’ Ass'n, 489 U.S. 602 (1989)

28 384 U.S. 757 (1966).

10

Schmerber’s motion to suppress the evidence was

denied.

In evaluating the legality of the officer’s

conduct, this Court first recognized that searches

that probe beneath the surface of the body fall

squarely within the protections of the Fourth

Amendment.29 As such, the Court went on to

determine the legality of the warrantless search on

the facts of the case and announced a landmark

decision that has been mis-cited more often than

perhaps any other case decided by this Court.

Although this Court went to great lengths to

state that Schmerber’s holding was limited to the

“special facts” of the case before it,?° the decision has

spawned an attitude in both the courts and in law

enforcement that a warrantless test can be legally

taken in any case involving drinking and driving:

what the officer in this case so casually referred to as

taking a “Schmerber-draw.” Schmerber has never

stood for the proposition that probable cause to

suspect impaired driving will always justify a

warrantless blood draw, nor did this Court intend for

it to do so.3! But the Minnesota Supreme Court's

decision in this case makes clear that it is being read

to mean exactly that.

What Schmerber actually said was 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.

23 [d. at 769-70.

3% Td. at 771.

31 Jd. at 770-71

11

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 petitioner’s arrest.%

In other words, given the evanescent nature of

alcohol in the blood and the time that had already

passed, an exigency existed that, when coupled with

probable cause, justified the warrantless search

under those particular facts.

But those facts were not present in Petitioner’s

case. Here, the arresting officer had no duties

outside of processing Petitioner. He was not

assigned to investigate the accident, care for the

injured or even manage traffic. His sole

responsibility was to drive Petitioner the half-mile to

the hospital. Once there, the officer did not even

consider obtaining a warrant because he had already

decided to obtain the blood sample by way of a

“Schmerber-draw,” despite the fact that hardly any

time at all had elapsed since the accident.

This Court concluded the Schmerber case with

this caution:

We thus conclude that the present

record shows no violation of petitioner's

32 Jd. at 770-71.

12

right under the Fourth and Fourteenth

Amendments to be free from

unreasonable searches and seizures. It

bears repeating, however, that we reach

this judgment only on the facts of the

present record. The integrity of an

individual's person is a cherished value

of our society. That we today hold that

the Constitution does not forbid the

State’s minor intrusions into an

individual’s body under stringently

limited conditions in no way indicates

that it permits more substantial

intrusions, or intrusions under other

conditions.34

It is difficult to imagine a set of facts less “exigent”

than those in this case. The decision to forgo a

warrant here was not the product of a genuine belief

that valuable evidence would be lost, but of an

institutional indifference to the Fourth Amendment,

citing this Court’s decision as justification. Worse

yet, the police have named this boundless extra-

constitutional expedient after this Court’s narrowly-

crafted decision. The Court should grant certiorari if

for no other reason then to put a stop to that.

But what is even worse, the Minnesota

Supreme Court decided to lower the standard for

warrantless searches at a time when technological

advances strongly militate for exactly the opposite

conclusion. At the time of Schmerber, this Court

could not have imagined that within a generation

every person would carry a wireless phone in his or

33 Jd. at 772.

13

her pocket, that everyone’s desk would have a

computer connected to everyone else’s computer via

the internet or even that the contents of a piece of

paper could be transmitted via facsimile over a

telephone line. Courts have kept pace with these

advancements in a number of different ways,

including the advent of “oral warrants.”

Minnesota has permitted the issuance of

search warrants based on oral testimony since

1994.34 The rules for oral search warrant

applications provide that the entire process may be

conducted by calling a judge by telephone, radio or

any other similar means of communication.*® In

addition, any written material the judge and police

officer wish to exchange may be transmitted by

facsimile or any other “appropriate means,” which

would presumably include emails and attachments.*®

The Minnesota Supreme Court briefly

addressed the telephonic warrant issue and

summarily dismissed it.37 The court reasoned that:

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 such a warrant.38 And during

the time taken to obtain a telephonic

warrant, it is undisputed that the

34 See generally Minn. R. Crim. P. 36.

35 Minn. R. Crim. P. 36.01.

36 Jd.

37 Shriner, 751 N.W.2d at 549.

38 This 1s probably true 1f officers are encouraged by this

decision never even to give the telephone warrant process a

try.

14

defendant's body is rapidly*9

metabolizing and dissipating the alcohol

in the defendant’s 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 defendant’s blood in

this case.1!

This observation misses the point completely. If an

officer tries to obtain a warrant and fails to reach a

judge, or the process proves to be too cumbersome or

time consuming in a particular case, that fact can

simply be added to the officer’s calculation of

whether to proceed without a warrant. Assuming

the officer then goes forward with a warrantless

blood draw, the fact that he or she tried to obtain a

warrant is simply added to what is supposed to be

the “totality of the circumstances” a court will

consider in determining whether exigent

circumstances existed that justified the search.

Undoubtedly, the Minnesota Supreme Court’s

decision in this case has its allure. It provides a

clear and expeditious path for officers to obtain

39 The Minnesota Supreme Court decided to add the word

“rapid” to every sentence where it discussed the dissipation of

alcohol from the body, but never cited any authority as to why

that word belongs in the lexicon. The rate of dissipation is,

and always has been (even in 1966) 0.015 percent per hour.

Hardly what one would call rapid. But even if that could

somehow be considered “rapid,” the court never even hinted

at how long it believed it would have taken to involve a

neutral magistrate.

© Id.

41 Footnote omitted.

biological samples without having to engage in any

excess thinking, and it protects the peaceful repose of

those Minnesota judges who might otherwise be

called upon to issue warrants in the middle of the

night. But this Court has made very clear that the

Constitution cannot be subverted in the name of

convenience or efficiency of law enforcement.42 And

if it cannot be subverted on behalf of efficient law

enforcement, it certainly should not be subverted in

the name of judges getting an uninterrupted night of

sleep.

In the end, to accomplish the goal it desired,

the Minnesota ‘Supreme Court had to invent the

constitutional concept of the “single-factor exigency”

to expand this Court’s limited holding in Schmerber.

If such a concept existed, this Court would not have

needed to bother with its lengthy analysis in Welch v.

Wisconsin.*® In that case, the State argued that the

threat to public safety, hot pursuit and the need to

preserve evidence of the driver’s alcohol]

concentration were sufficient reasons to set aside the

warrant requirement.‘4 This Court rejected the

claim that even the combination of these factors was

enough to create the cxigent circumstances needed.*

42 “(T]he mere fact that law enforcement may be made more

efficient can never by itself justify disregard of the Fourth

Amendment. The investigation of crime would always be

simplified if warrants were unnecessary. But the Fourth

Amendment reflects the view of those who wrote the Bill of

Rights that the pnvacy of a person’s home and property may

not be totally sacrificed in the name of maximum simplicity in

enforcement of the criminal law.” Mincey, 437 U.S. at 393

(internal citations omitted).

43 466 U.S. 740 (1984).

44 Td. at 753

45 Jd. at 754.

16

It is difficult to imagine how, when a combination of

factors that included the need to preserve alcohol-

concentration evidence was insufficient to constitute

exigent circumstances, the Minnesota Supreme

Court could conclude that “single-factor” was enough.

Over the course of the last forty-two years,

courts and law enforcement have slowly expanded

the limited holding in Schmerber to the point that it

is now cited as justification for any warrantless blood

draw in an impaired driving case.46 Minnesota’s

latest interpretation, that Schmerber somehow

created a “single-factor exigent circumstance,”

obviating the need to consider the totality of the

circumstances, is just the latest affront. As this

Court cautioned long ago:

It may be that it is the obnoxious thing

in its mildest and least repulsive form;

but illegitimate and unconstitutional

practices get their first footing in that

way, namely, by silent approaches and

slight deviations from legal modes of

procedure. This can only be obviated by

adhering to the rule that constitutional

provisions for the security of persons

and property should be liberally

construed. A close and literal

construction deprives them of half their

efficacy, and leads to gradual

depreciation of the right, as if it

consisted more in sound than in

substance. It is the duty of courts to be

watchful for the constitutional rights of

46 See generally Section II, below.

17

the citizen, and against any stealthy

encroachments thereon.4?

The Fourth Amendment right to be free from

warrantless intrusions beneath the skin has been

subjected to forty-two years of “slight deviations” and

“stealthy encroachments.” It is time for this Court to

intervene to reaffirm the importance of the warrant

requirement and reverse the trend of the States to

bow to the convenience of law enforcement. For

these reasons, Petitioner respectfully requests that

the United States Supreme Court grant certiorari in

this case, and will ultimately ask that the Court

reverse this unprecedented and unjustified

expansion of police authority as contrary to the

Fourth Amendment.

II, The Minnesota Supreme Court has

decided an important federal question in

a way that conflicts with the decisions of

other states.

As noted by the Minnesota Supreme Court,

the federal] question raised in this case has been

resolved inconsistently by appellate courts around

the country. Not only are the states’ decisions

inconsistent, they have actually arrived at opposite

conclusions while passing on the exact same federal

constitutional question.

The Minnesota Supreme Court cited one state

(Utah) that has ruled that the Schmerber did not.

create a single-factor exception to the warrant

47 Boyd v. United States. 116 U.S. 616, 635 (1886).

‘Se

18

requirement.*® The Minnesota Supreme Court

further noted that one state (Wisconsin) ruled that

the evanescent nature of alcohol in the blood alone

constituted an exigent circumstance justifying a

warrantless search.?? In addition to those cited by

the court, at least six additional states®® have held

that the mere evanescent nature of alcohol does not

create a per se exigency.®!' But at least two other

states5? have held that the presence of alcohol is the

only factor needed to satisfy the exigent

circumstances test.55 With the states irreconcilably

divided over such an important constitutional

question, this Court should resolve the dispute.

As the stewards of the Fourth Amendment,

this Court should be particularly concerned that

other courts around the country are reaching

opposite conclusions when interpreting the same

opinions from this Court. Clearly, additional

guidance is required. This case presents a perfect

opportunity to lay this question to rest. No party

here is claiming the existence of any fact other than

the evanescent nature of alcohol as a justification for

forgoing a warrant. The Court would have the

48 State v. Rodriguez, 156 P.3d 771 (Utah 2007).

49 State v. Bohling, 494 N.W.2d 399 (Wis. 2003).

50 Alaska, Arizona, Idaho, Indiana, lowa, and Oregon

5! State v. Blank, 90 P.3d 156, 162 (Ak. 2004); State v.

Flannigan, 978 P.2d 127, 131 (Amz. Ct. App. 1998) rev. denied

(Ariz. May 26, 1999); State v. Curtis, 680 P.2d 1383, 1389

(Idaho Ct. App. 1984); Justice v. State, 552 N.E.2d 844, 847

(Ind. Ct. App. 1990); State v. Johnson, 744 N.W.2d 340, 344

(lowa 2008); State v. Moylett, 836 P.2d 1329, 1334 (Or. 1992).

52 California and Tennessee

53 People v. Thompson, 135 P.3d 3, 11 (Cal. 2006) pet. for cert.

denied (Oct. 16, 2006); State v. Humphreys, 70 S.W.3d 752

(Tenn. Ct. App. 2001)

19

opportunity to provide an answer that is obviously

needed to ensure that the Constitution is being

applied equally to every person in the United States.

CONCLUSION

For the foregoing reasons, Petitioner

respectfully requests that this Court grant the

petition for writ of certiorari and reverse the decision

of the Minnesota Supreme Court.

Respectfully submitted,

STRANDEMO, SHERIDAN &

DULAS, P.A.

Jeffrey S. Sheridan

Counsel of Record for Petitioner

320 Eagandale Office Center

1380 Corporate Center Curve

Kagan, Minnesota 55121

(651) 686-8800

App. |

STATE OF MINNESOTA

IN SUPREME COURT

A07-181

Court of Appeals Dietzen, J.

Dissenting, Meyer and Anderson, Paul H., JJ.

State of Minnesota,

Appellant,

VS

Janet Sue Shriner,

Respondent.

SYLLABUS

When law enforcement has probable cause to

believe a defendant has committed the offense of

criminal vehicular homicide or operation under Minn.

Stat. § 609.21 (2006), it is important that the

defendant's 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 a single-factor exigent circumstance that will

justify the pohce taking a warrantless, nonconsensual

blood draw from a defendant, provided that the police

have probable cause to believe that defendant

committed criminal vehicular homicide or operation.

Reversed and remanded.

Heard, considered, and decided by the court en

banc.

App. 2

OPINION

DIETZEN, Justice.

Appellant State of Minnesota challenges a

district court order granting the motion of respondent.

Janet Sue Shriner (Shriner) to suppress evidence of a

warrantless blood draw obtained after she caused a

car accident. The court of appeals affirmed,

concluding that im order for a_ warrantless,

nonconsensual blood draw to meet the requirements

of the Fourth Amendment, there must be probable

cause and exigent circumstances as demonstrated by

an officer's evaluation of the totality of the

circumstances. State v. Shriner, 739 N.W.2d 432, 440

(Minn. App. 2007). The issue on this appeal is

whether the evanescent nature of alcohol in the blood

constitutes "single-factor" exigent circumstances

sufficient to justify a warrantless blood draw when

there is probable cause to arrest a suspect for

operating a vehicle in violation of Minn. Stat. §

609.21 (2006). We granted review and now reverse

and remand to the district court for proceedings

consistent with this opinion.

On May 8, 2006, at approximately 9:26 p.m.,

Shriner was involved in a car accident when she

drove her car into oncoming traffic on McAndrews

Road in Burnsville, Minnesota, hit another car in a

head-on collision, and continued driving until she was

forced to stop by a Burnsville squad car. The squad

car bumped Shriner's vehicle, causing it to spin and

go onto a cement median. Burnsville police requested

that Shriner voluntarily leave her vehicle, but she

refused. Police then forcibly removed her from the car

after breaking a window and opening the door.

App. 3

At that point, police observed that Shriner was

not injured and that she smelled of alcohol, had

blood-shot eyes that were glazed over, and was

unable to stand without assistance. An officer then

placed Shriner under arrest and put her in the back

seat of his squad car. Shortly thereafter, he learned

from other officers at the scene of the accident that

the driver of the other vehicle had sustained head

and leg injuries. The officer then took Shriner to a

nearby hospital for the purpose of obtaining a blood

sample. The officer did not invoke the implied-

consent procedure or read the _ implied-consent

advisory.

Medical personnel drew a blood sample from

Shriner approximately 45 minutes after the accident.

The State represented that subsequent analysis of

Shriner's blood sample indicated her blood-alcohol

content was 0.33.! Before directing medical personnel

to take the blood sample, the police did not obtain, or

attempt to obtain, a search warrant.

The State charged Shriner with seven criminal

counts, including first-degree driving while impaired

and criminal vehicular operation resulting in bodily

harm. Before trial, Shriner moved to have the results

of the blood draw suppressed. At the omnibus

hearing, Shriner conceded that there was probable

cause to believe that she violated the criminal

vehicular operation statute, but she argued that the

State did not show exigent circumstances that would

justify a warrantless, nonconsensual blood draw. The

There is nothing in the record regarding the analysis of

Shriner's blood sample or her blood-alcohol content. Shriner,

however, does not dispute the State's representation.

App. 4

officer who transported Shriner to the hospital for the

blood draw admitted that he was not worried that

Shriner was “about to slip under the legal] limit.”

Following the hearing, the district court

granted Shriner's motion to suppress, finding that

there was probable cause to believe “that a blood

alcohol test would result in the discovery of evidence

relevant to prosecuting [Shriner] for a violation of

Minn. Stat. § 609.21,” but that the State failed to

present evidence of exigent circumstances or that an

emergency existed justifying a warrantless blood

draw. Due to a lack of probable cause to support the

charges, the court dismissed the counts of first-degree

driving while impaired and criminal vehicular

operation resulting in bodily harm.

The court of appeals affirmed the district court

in a published 2-1 decision.2 State v. Shriner, 739

N.W.2d 432, 440 (Minn. App. 2007). The majority

concluded that 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

? The court of appeals determined that the suppression of the

blood-alcohol content evidence would have a critical impact on

the State's case. State v. Shriner, 739 N.W.2d 432, 435 (Minn.

App. 2007). That issue is not a part of this appeal.

App. 5

evidence of alcohol consumption.” Id. The majority

apphed a “totality-of-the-circumstances” test to

determine whether exigent circumstances existed to

necessitate conducting the blood draw without a

warrant. Id at 438. We granted the State's petition

for further review.

App. 6

I.

The State contends that the district court erred

in suppressing the results of the blood draw. “When

reviewing a pretrial order on a motion to suppress

evidence, we may independently review the facts and

determine whether, as a matter of law, the district

court erred in suppressing or not suppressing the

evidence.” State v. Askerooth, 681 N.W.2d 353, 359

(Minn. 2004).

The Fourth Amendment to the United

States Constitution provides:

The right of the people to be secure in

their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing

the place to be searched, and the persons

or things to be seized.

Article I, section 10 of the Minnesota Constitution

contains a parallel provision.

Taking a person's blood is considered a search

under the Fourth Amendment. Schmerber uv.

California, 384 U.S. 757, 767 (1966). It is a basic

principle of constitutional law that warrantless

searches are presumptively unreasonable. State uv.

Licari, 659 N.W.2d 243, 250 (Minn. 2003).

“Nevertheless, because the ultimate touchstone of

the Fourth Amendment is ‘reasonableness,’ the

warrant rcquirement is_- subject to certain

exceptions.” Brigham City v. Stuart, 547 U.S. 398,

403 (2006).

App. 7

One such exception is exigent circumstances.

“(Warrants are generally required to search a

person's home or his person unless ‘the exigencies of

the situation’ make the needs of law enforcement so

compelling that the warrantless search is objectively

reasonable under the Fourth Amendment.” Brigham

City, 547 U.S. at 403 (alteration in original) (quoting

Mincey v. Arizona, 437 U.S. 385, 393-94 (1978)). “The

U.S. Supreme Court has not adopted a definite test

for determining when exigent circumstances exist.”

State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990). The

Court, however, has recognized. such emergency

conditions exist in a few situations, including the hot

pursuit of a fleeing felon, the destruction of evidence,

an ongoing fire, and the rendering of emergency aid.

Welsh v. Wisconsin, 466 U.S. 740, 750 (1984); Gray,

456 N.W.2d at 256.

Initially, when this court discussed whether

exigent circumstances existed to justify a warrantless

search, we looked to the totality of circumstances and

considered six factors that were articulated by the

United States Court of Appeals for the D.C. Circuit in

the case of Dorman v. United States, 435 F.2d 385

(1970).3 See State v. Lasley, 306 Minn. 224, 232, 236

> The six factors we adopted in weighing whether the "totality

of the circumstances" create exigent circumstances are: (1)

“whether a grave or violent offense is involved"; (2) "whether

the suspect is reasonably believed to he armed"; (3) "whether

there is strong probable cause connecting the suspect to the

offense"; (4) “whether police have strong reason to believe the

suspect is on the premises"; (5) "whether it is lkely the

suspect will escape if not swiftly apprehended"; and (6)

"whether peaceable entry was made." State v. Hummel, 483

N.W.2d 68, 72-73 (Minn. 1992) (quoting Gray, 456 N.W.2d at

256, and citing Dorman, 435 F.2d at 392-93).

App. 8

N.W.2d 604, 609 (1975) (citing the six factors outlined

in Dorman for determining whether “exigent

circumstances” justified entering a suspect's home

without a warrant). Determining whether exigent

circumstances exist under the “totality of the

circumstances” is a “flexible approach _ that

encompasses all relevant circumstances.” State v.

Hummel, 483 N.W.2d 68, 73 (Minn. 1992) (internal

quotation marks omitted).

In State v. Gray, we refined our jurisprudence

regarding exigent circumstances. We _ concluded

“{t]here generally are two types of tests for exigent

circumstances: (1) single factor exigent

circumstances, and (2) in the absence of any of these

factors, a ‘totality of the circumstances’ test.” 456

N.W.2d 251, 256 (Minn. 1990). We have described the

test for single-factor exigent circumstances as one in

which “the existence of one fact alone creates exigent

circumstances.” In re Welfare of D.A.G., 484 N.W.2d

787, 791 (Minn. 1992) (emphasis added). It is only

when “none of the single factor exigent circumstances

is clearly implicated” that we apply a “totality of the

circumstances” test to determine whether exigent

circumstances are present. Gray, 456 N.W.2d at 256;

see also In re Welfare of B.R.K., 658 N.W.2d 565, 579

(Minn. 2003) (“When a 'single factor' exigent

circumstance does not exist, we apply a totality of the

circumstances test’); D.A.G., 484 N.W.2d at 791.

Thus, this court has acknowledged for nearly 20

years that the existence 6f one fact alone can create

exigent circumstances that justify a warrantless

search, and that in such a situation, we do not rely

upon the totality of the circumstances in considering

whether a warrantless search was proper.

App. 9

We have recognized’ single-factor exigent

circumstances justifying a warrantless search in

cases involving hot pursuit of a fleeing felon,

imminent destruction or removal of evidence,

protection of human life, likely escape of the suspect,

and fire. Gray, 456 N.W.2d at 256. More importantly,

we have stated that a warrantless search is

permissible “when the delay necessary to obtain a

warrant might result in the loss or destruction of the

evidence.” State v. Richards, 552 N.W.2d 197, 203

(Minn. 1996). Whether exigent circumstances exist is

an objective determination, and the _ individual

officer's subjective state of mind is_ irrelevant.

Brigham City, 547 U.S. at 404-05 (holding that

whether exigent circumstances existed because the

police needed to render emergency aid was an

objective determination where the _ subjective

motivation of the officer was irrelevant); cf. State v.

Olson, 482 N.W.2d 212, 214 (Minn. 1992) (holding

that “if there is an objective legal basis” for a search,

it will be upheld, “even if the officer * * * conducting

the search based his or her action on the wrong

ground or had an improper motive”). It is the State's

burden to provide facts to support its theory that the

evidence “the officer thought was present” would be

destroyed or disappear. See D.A.G., 484 N.W.2d at

791 (rejecting State's contention that warrantless

entry into home was justified hy the imminent

destruction of evidence because the State had “not

advanced a theory” and had “failed to provide facts”

explaining how the drugs the officers saw “would

have suddenly disappeared”).

App. 10

A. Single factor exigent circumstances

The State argues that when police have

probable cause to believe that a defendant committed

criminal vehicular operation resulting in homicide or

injury,* they may take a blood draw without a

warrant because the evanescent nature of alcohol in

the blood creates a_ single-factor exigent

circumstance. The single-factor exigent circumstance

the State relies on is the imminent destruction of

evidence.

In the landmark case of Schmerber vu.

California, 384 U.S. 757, 758-59 (1966), the United

States Supreme Court considered whether the taking

of a blood sample from a nonconsenting driver

violated his right under the Fourth Amendment to be

free of unreasonable searches and _ seizures.

Schmerber, who was the driver of a car involved in an

accident, was suspected by an investigating officer at

the accident scene to be under the influence of

alcohol. Jd. at 768-69. At the hospital, the officer

placed Schmerber under arrest and, without first

obtaining a warrant or Schmerber's consent, directed

hospital staff to take a blood sample. Id at 758-59,

768. The Supreme Court held that the blood tests

were admissible, concluding that probable cause

* The criminal vehicular operation statute prohibits a person

from, among other things, causing the death or injury of

another person as a result of operating a motor vehicle "while

having an alcohol concentration of 0.08 or more," "while having

an alcohol concentration of 0.08 or more, as measured within

two hours of the time of driving," or in a negligent manner

while under the influence of alcohol. Minn. Stat. § 609.21,

subds. 1-2b (2006).

App. 11

existed to arrest the driver, id. at 768, and that

[t]he officer in the present case * * *

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 timc 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 _ petitioner's

arrest.

Id at 770-71 (citation and quotation marks omitted).

It is unclear whether the Supreme Court justified the

warrantless search because of the “threatened

destruction of evidence” caused by the _ rapid

dissipation of alcohol in the defendant's bloodstream

or because the search was a reasonable search

incident to a lawful arrest.

Then in the case of Cupp v. Murphy, 412 U.S.

291, 292-93 (1973), the Supreme Court considered

whether taking scrapings from the fingernails of a

defendant, who the police suspected had murdered

his wife, violated the Fourth Amendment when the

App. 12

defendant had not been arrested. During an

interview with the defendant, officers noticed a dark -

substance on the defendant's finger that they

believed to be blood. Jd. at 292. The defendant

refused a request for a sample of his fingernail

scrapings and immediately placed his hands behind

his back and appeared to rub them together. Id. at

296. He then placed his hands in his pockets, at

which point the officers heard “a metallic sound, such

as keys or change rattling.” Jd. (internal quotation

marks omitted). The officers detained the defendant

and, without first obtaining a warrant, took a sample

from under his fingernails. Jd. at 292-93. This sample

contained skin and blood cells from the victim. Id. at

292. Relying in part on Schmerber, the Court upheld

the search, concluding that the police had probable

cause to arrest the suspect for murder, id. at 293, and

were “justified” in subjecting him “to the very limited

search necessary to preserve the highly evanescent

eutdence they found under his fingernails.” Jd. at 296

(emphasis added).

Subsequent cases of the Supreme Court have

recognized Schmerber as a case in which exigent

circumstances justified a warrantless search. See

Winston v. Lee, 470 U.S. 753, 759 (1985) (discussing

Schmerber and explaining that “[b]lecause the case

fell within the exigent-circumstances exception to the

warrant requirement, no warrant was necessary’);

Welsh, 466 U.S. at 750 (discussing examples of

exigent circumstances the Supreme Court has

recognized and citing Schmerber as one such

example, based on the “destruction of evidence”).

This court has also concluded that a

warrantless blood draw is justified if supported by

App. 13

probable cause and exigent circumstances. State uv.

Aguirre, 295 N.W.2d 79, 81 (Minn. 1980). Further, we

have upheld warrantless blood draws in cases

involving the offense of criminal vehicular homicide

when exigent circumstances existed that required

immediate action to prevent the imminent

destruction of evidence. See id. at 82; State v.

Oevering, 268 N.W.2d 68, 74 (Minn. 1978).

In Oevering, we rejected a Fourth Amendment

challenge to the admission of blood-alcohol content

evidence when a blood sample was taken without the

defendant's consent or a warrant and when the officer

had probable cause to believe that the defendant,

while under the influence of alcohol, had caused a

traffic accident resulting in a fatality. 268 N.W.2d at

69, 74. Applying the rule articulated by the Supreme

Court in Cupp, we stated that the blood draw could

be conducted without a warrant if, among other

things, “the evidence sought will be forever lost

absent the search.” Jd at 73. We stated that “it is

beyond question that with the passage of time,

normal physiological functions eliminate the alcohol

content of an inebriate's blood.” Jd at 74. We

concluded that, due to the passage of time after the

accident, immediate action was required to avoid the

loss of blood-alcohol content evidence. Jd.

Two years later in Aguirre, we held that a

nonconsensual, warrantless removal of a suspect's

blood did not violate the Fourth Amendment when an

officer “had probable cause to believe that defendant

driver was not only intoxicated but had just

committed the felony offense of criminal negligence

resulting in death.” 295 N.W.2d at 82 (citing Minn.

Stat. § 609.21 (1978)). We reasoned that the officer

App. 14

was confronted with a situation in which “he knew

that it was essential that he obtain the blood sample

without delay and without regard to whether

defendant would consent to the removal of a blood

sample.” Id.

We did not use the terminology “single-factor

exigent circumstances” oor “totality of the

circumstances” in either Oevering or Aguirre. But we

had not adopted the two separate tests for exigent

circumstances until after these cases were decided.

See Gray, 456 N.W.2d at 256 (first recognizing in

1990 the distinction between single-factor exigent

circumstances and the totality of the circumstances

test for determining exigent circumstances). Instead,

Oevering and Aguirre rested on the determination

that “the evidence sought will be forever lost absent

the search” because “with the passage of time, normal

physiological functions eliminate the alcohol content

of an inebriate's blood.” Oevering, 268 N.W.2d at 73-

74; see also Aguirre, 295 N.W.2d at 82 (finding it was

“essential” the officer obtain the blood sample

without regard to whether the defendant would

consent to the blood draw). But our analysis in

Oevering and Aguirre still focused on the imminent

destruction of evidence — the rapid dissipation of

alcohol content in the defendant's bloodstream was

the dispositive factor on which we based our

conclusion that evidence in those cases would be lost

without an immediate search. Consequently, our

holdings in Oevering and Aguirre support the

conclusion that the rapid dissipation of alcohol in the

bloodstream may be a_= single-factor exigent

circumstance based on the imminent destruction of

evidence.

App. 15

In State v. Paul, this court held that the police,

who were in hot pursuit of a suspected DWI offender,

could make a warrantless entry into the defendant's

home in order to effectuate arrest. 548 N.W.2d 260,

265 (Minn. 1996). We concluded, among other things,

that the rapid dissipation of alcohol in the

bloodstream constitutes a single-factor exigent

circumstances exception to the warrant requirement.

Specifically, we found that “the need to preserve

evidence of [the defendant's] blood alcohol level is a

compelling exigent circumstance under the.

‘destruction of evidence' exception to the warrant

requirement first recognized [in Schmerber].” Id at

266. We further noted, in summarizing Schmerber,

that the warrantless removal of blood is “necessary to

prevent the destruction of the most probative

evidence of [a defendant's] offense” because “the

percentage of alcohol in the blood begins to diminish

shortly after drinking stops, as the body functions to

eliminate it from the system.”®> Jd. at 267 (quoting

> The dissent asserts that we “did not mention a single-factor

exigent circumstance" in Paul. But in Paul we expressly

referred to and analyzed the destruction of evidence exception

to the warrant requirement, which is a single-factor exigent

circumstance. See 548 N.W.2d at 266-67. Thus, the dissent's

argument that we "relied on the totality of the circumstances

to support the conclusion that there was no time to get a

warrant” is contrary to the record in Paul. Specifically, the

fact that we stated the defendant's blood-alcohol level "might

have dissipated while a warrant was being obtained,” as

opposed to “would have" dissipated, does not indicate that we

based our determination that evidence would have been lost

while a warrant was obtained on anything other than the fact

that the percentage of alcohol in the body ts reduced shortly

after drinking stops because of the body's natural processes.

See id. at 267. We agree that Paul also addressed another

App. 16

Schmerber, 384 U.S. at 770); see also State v. Heaney,

689 N.W.2d 168, 173 n.2 (Minn. 2004) (describing in

dicta that Schmerber and Oéevering, “due to the

natural exigency involved in obtaining blood-alcohol

evidence, recognize the power of a peace officer to

. compel a blood sample from a driver where there is

probable cause to believe the driver has violated a

criminal vehicular operation law’); State v. Speak,

339 N.W.2d 741, 745 (Minn. 1983) (holding “[e]xigent

circumstances were clearly present” that justified

warrantless, nonconsensual breathalyzer test where

defendant was suspected of fatally hitting pedestrian

while driving under the influence of alcohol).

Consequently, we conclude that when officers

have probable cause to believe a defendant has

committed the offense of criminal vehicular homicide

or operation under Minn. Stat. § 609.21, it is

important that the defendant's blood be tested within

2 hours of the accident causing injury to or the death

of another. With every passing minute, the most

single-factor exigent circumstance, the hot pursuit of a fleeing

felon. But this court's consideration of the imminent

destruction of evidence was limited to consideration of a

single factor — the rapid dissipation of alcohol in the

defendant's bloodstream. See id. at 266-67. Thus, the court

relied only on the rapid dissipation of alcohol to support its

conclusion that there was no time to get a warrant based on

the imminent destruction of evidence.

The criminal vehicular homicide and operation statute

prohibits a person from, among other things, causing bodily

harm to another person as a result of operating a motor

vehicle “while having an alcohol concentration of 0.08 or

more, as measured within two hours of the time of driving.”

Minn. Stat. § 609.21, subd. 2b.

App. 17

probative evidence of this crime is subjected to

destruction by the body's natural processes. 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, provided that the police

have probable cause to believe that defendant

committed criminal vehicular operation.’

B. Totality of the circumstances

Shriner argues that this court should look at

the totality of the circumstances to determine

whether exigent circumstances exist to support a

warrantless blood draw. Shriner contends that the

holding of Schmerber requires this court to look at

more than the evanescent nature of blood-alcohol

content in determining whether exigent

circumstances exist that would justify a warrantless

blood draw. Shriner relies heavily on State ov.

Rodriguez, 156 P.3d 771 (Utah 2007), to support her

argument. There the Utah Supreme Court concluded

that Schmerber did not create a_ single-factor

exception to the warrant requirement, that the

availability of telephonic warrants cuts against

adopting a single-factor exigency exception, and that

a single-factor exigency exception would deter the

pursuit of progressive approaches to warrant

acquisition. Jd. at 776, 778-79.

We express no opinion on whether the evanescent nature of

blood-alcohol content is sufficient, in and of itself, to create

single-factor exigent circumstances that would justify the

police taking a warrantless blood draw when they have

probable cause to believe that a defendant has committed any

other crime where blood-alcohol content would be highly

probative evidence.

App. 18

We disagree. We have concluded in previous

cases that there are two separate tests for exigent

circumstances, and that if one factor creates exigent

circumstances, we do not review other factors under a

totality of the circumstances test to determine

whether exigent circumstances exist. B.R.K., 658

N.W.2cd at 579; D.A.G., 484 N.W.2d at 791; Gray, 456

N.W.2d at 256. In D.A.G. we stated that the existence

of “one fact alone” may create exigent circumstances

under the single-factor test. 484 N.W.2d at 791. It is

undisputed that as a result of the body's physiological

processes, the blood-alcohol content in a defendant's

blood dissipates with the passage of every minute.

Thus, the rapid dissipation of blood-alcohol content

caused by the body's natural processes is a single

factor that creates the exigent circumstances in the

case of criminal vehicular operation to justify a

warrantless blood draw.

Schmerber does not prohibit our conclusion

that the rapid dissipation of alcohol in the

bloodstream can create a_ single-factor exigent

circumstance.? First, the Supreme Court has stated

' Therefore, we reject the dissent’s conclusion that “the totality

of the circumstances" must be reviewed in this case and that

“when a police officer has probable cause to believe that a

suspect has committed criminal vehicular operation, a blood

sample may be taken without the suspect's consent if the

officer has a reasonable belief that the delay necessary to

obtain a warrant, under the circumstances, threatens the

destruction of evidence."

* The dissent contends that the holding of Schmerber compels

the conclusion that a totality of circumstances test must be

employed on a case-by-case basis to determine whether a

warrantless blood draw 1s reasonable when the police suspect

a person of dmving while under the influence of alcohol. The

App. 19

in subsequent decisions that its holding in Schmerber

justifies a warrantless blood draw based on the

imminent destruction of alcohol caused by the

natural processes of the body. In Skinner v. Railway

Labor Executives' Ass'n, 489 U.S. 602, 609, 624

(1989), the Supreme Court found federal regulations

that required toxicological testing of the blood or

urine of all railroad employees directly involved in

any train accident that resulted in a reportable injury

or damage to railroad property of $500,000 or more

did not violate the Fourth Amendment and that a

warrant was not a prerequisite to such searches of

railroad employees. The Court cited Schmerber, 384

U.S. at 770-71, to support the conclusion that the

purposes behind requiring post-accident blood testing

of railroad employees would be frustrated by

requiring a warrant because “alcohol and other drugs

are eliminated from the bloodstream at a constant

rate, and blood and breath samples taken to measure

whether these substarices were in the bloodstream

dissent notes that the judgment of Schmerber was limited

"only on the facts of the present record" and that the Supreme

Court stated, "[t]hat we today hold that the Constitution does

not forbid the State's minor intrusions into an individual's

body under stringently limited conditions in no way indicates

that it permits more substantial intrusions, or intrusions

under other conditions." 384 U.S. at 774. This language,

however, is properly analyzed as indicating that Schmerber

should not be viewed as authorizing the police to take

warrantless blood draws in circumstances other than when

they suspect a person of drunk driving, as opposed to

compelling the conclusion that the Supreme Court held in

Schmerber that a "totality of the circumstances" approach

must be used in determining whether the police can take a

warrantless blood draw when they have probable cause to

believe someone has engaged in drunken driving.

App. 20

when [an accident] occurred must be obtained as soon

as possible.” Skinner, 459 U.S. at 623 (citation

omitted). After noting that some drugs are still

detectable in the body “for longer periods of time,” the

Court concluded that “the delay necessary to procure

a warrant nevertheless may result in the destruction

of valuable evidence.”!° Id.; see also South Dakota uv.

Neville, 459 U.S. 553, 559 (1983) (indicating that

“Schmerber * * * clearly allows a State to force a

person suspected of driving while intoxicated to

submit to a blood-alcohol test’).

Further, the view urged by Shriner, which was

also adopted by the court of appeals in its decision, is

the minority view of Schmerber. Other courts have

interpreted Schmerber as concluding that the

naturally rapid dissipation of alcohol in the

bloodstream creates an emergency that justifies a

10 : , ; :

The dissent contends that our reliance on Skinner is

misplaced, arguing that the Supreme Court in Skinner cited

factors other than the rapid dissipation of alcohol in the

bloodstream to uphold the regulations at issue, and

therefore examined "the totality of the particular

circumstances" and not a single factor. But in Skinner, the

Supreme Court did not mention the other factors identified

by the dissent, such as the narrowness of the regulations at

issue or that a private company would set the testing

process in motion, in its analysis of Schmerber or in its

discussion of whether blood-alcohol content evidence would

be lost in the time it takes to get a warrant. See Skinner,

489 U.S. at 623. Thus, these additional factors do not

indicate that the Supreme Court relied on anything other

than the rapid dissipation of alcohol in the bloodstream to

support its conclusion that blood-alcohol content evidence

would be lost in the time it takes to get a warrant.

App. 21

warrantless blood draw.!!

'' See United States v. Eagle, 498 F.3d 885, 892 (8th Cir. 2007)

(upholding warrantless blood draw and quoting Schmerber,

384 U.S. at 770-71, as support for the conclusion that

"fe]xigent circumstances exist when there is a risk of

destruction of evidence, including a risk that a defendant's

blood-alcohol content will dissipate because ‘the body

functions to eliminate [alcohol] from the system' " (second

alteration in original)); United States v. Reid, 929 F.2d 990,

993-94 (4th Cir. 1991) (relying on Schmerber, 384 U.S. at

770-71, and Skinner, 489 U.S. at 623, for the proposition

that warrants are not required for police to administer

breathalyzer tests because, due to the constant rate at which

alcohol is eliminated from the bloodstream, "[t]jime is what

is lacking in these circumstances"); State v. Cocio, 709 P.2d

1336, 1344-45 (Ariz. 1985) (citing Schmerber, 384 U.S. at

770, to support conclusion that warrantless blood sample

was taken based on exigent circumstances due to the

imminent destruction of evidence and indicating that

dissipation of alcohol in the blood presents “even more

compelling [exigency] than Cupp since alcohol in a suspect's

blood is certain to disappear while the physical evidence on

defendant in Cupp was only very likely to disappear while a

search warrant was obtained"); State v. Entrekin, 47 P.3d

336, 348 (Haw. 2002) (quoting Schmerber, 384 U.S. at 776,

to support conclusion that under state constitution "exigent

circumstances were clearly present" because "{i]t is

undisputed that 'the percentage of alcohol in the blood

begins to diminish shortly after drinking stops, as the body

functions to eliminate it from the sysiem' "); State uv.

Woolery, 775 P.2d 1210, 1212 (Idaho 1989) ("In the instant

situation [where a warrantless, nonconsensual blood draw is

sought by police], the destruction of the evidence by

metabolism of alcohol in the blood provides an inherent

exigency which justifies the warrantless search." (emphasis

added)); State v. Baker, 502 A.2d 489, 493 (Me. 1985)

(indicating that "[t]he bodily process that eliminates alcohol

* * * provides exigent circumstances obviating the need to

obtain a warrant prior to administering a blood test"

without any evaluation of the time needed to obtain a

App. 22

When faced with the same issue presented

here, the Wisconsin Supreme Court in State uv.

Bohling determined that the evanescent nature of

alcohol in the blood was sufficient to constitute

exigent circumstances justifying a warrantless

search. 494 N.W.2d 399, 406 (Wis. 1993). ‘The

Wisconsin Supreme Court explained that

Schmerber can be read in either of two

ways: (a) that the rapid dissipation of

alcohol in the bloodstream _ alone

constitutes a sufficient exigency for a

warrantless blood draw to obtain evidence

of intoxication following a lawful arrest

for a drunk driving related violation or

crime * * *: or (b) that the rapid

dissipation of alcohol in the bloodstream,

coupled with an accident, hospitalization,

and the lapse of two hours until arrest,

constitute exigent circumstances for such

a blood draw.

Id. at 402. The Bohling court concluded that the first

of these readings of Schmerber was the more

appropriate. Id.

The Bohling court based its conclusion on “(1) a

logical reading of Schmerber, (2) the Supreme Court's

decision in Skinner * * *, (3) interpretations of

Schmerber by other courts, and (4) an examination of

[the State's] interest in enforcing its drunk driving

laws.” Id. Specifically related to the first reason, the

Wisconsin Supreme Court noted that “[a] logical

analysis of the Schmerber decision indicates that the

warrant or the fact that police arrived on the scene soon

after the accident).

App. 23

exigency of the situation presented was caused solely

by the fact that the amount of alcohol in a person's

bloodstream diminishes over time.” Jd. While the

Supreme Court noted other facts in Schmerber, such

as the fact that an accident occurred and that the

defendant was taken to the hospital, these other facts

“did not increase the risk that evidence of

intoxication would be lost.” Jd. We agree with the

Wisconsin Supreme Court's analysis of Schmerber.

The dissent argues we have abandoned the

requirement that in invoking “the imminent

destruction or removal of evidence” as a single-factor

exigency, the State must explain why the peace

officer could reasonably believe that evidence would

be destroyed. Because we have not abandoned this

requirement, the dissent's warning rings hollow. We

are simply recognizing that when the police have

probable cause to suspect a defendant committed

criminal vehicular operation, it is objectively

reasonable to conclude that the alcohol content in a

defendant's blood dissipates with the passage of time

due to the human body's natural, physiological

processes. Our existing jurisprudence has already

recognized this physiological process. Today we

conclude that in the case of criminal vehicular

operation the undisputed rapid dissipation of alcohol

in the defendant's blood creates a_ single-factor

exigent circumstance.

The dissent also argues that “it is the length of

the delay” in obtaining a warrant “that determines

whether the evidence will disappear.” This argument

rests on the contention that exigent circumstances

are not present if it is possible to get a warrant before

all the evidence is destroyed. But our existing

App. 24

jurisprudence has recognized that a warrantless

search is justified based on the imminent destruction

of evidence when there is the potential loss of

evidence during the delay necessary to obtain a

warrant. See Richards, 552 N.W.2d at 203.

Specifically, when the police have probable cause to

believe a person has committed the serious crime of

criminal vehicular operation, there is the potential

loss of all blood-alcohol content evidence, and the

ongoing, actual loss of such evidence with every

passing minute from the time the accident occurred

until the blood draw is taken. Because it is

undisputed that this loss of the most probative

evidence of criminal vehicular operation occurs

during the time it takes to obtain a warrant, exigent

circumstances are present based on the imminent

destruction of evidence.

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 judge's availability. The

officer also may not know the time of the suspect's

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.!2 Under a totality of the

circumstances test, an officer would be called upon to

\2 We note that under the facts of this case, even though

Shriner was arrested approximately half a mile from a

hospital, it still took 45 minutes to obtain her blood sample.

App. 25

speculate on each of these considerations and predict

how long the most probative evidence of the

defendant's blood-alcohol level would continue to

exist before a blood sample was no longer reliable.

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 such a warrant.!? And

during the time taken to obtain a telephonic warrant,

it is undisputed that the defendant's body is rapidly

metabolizing and dissipating the alcohol in the

defendant's 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 defendant's blood in this case. Shriner also raises

the possibility that a blood draw may be taken hours

after the accident and that qualified scientists can

extrapolate the results back to the time of the

accident. But respondent presents no evidence to

support this contention and, therefore, we decline to

address it.

aA telephonic warrant does not eliminate the need for

documentation. A duplicate original warrant must be

prepared and read to the judge. Minn. R. Crim. P. 36.03.

App. 26

iT.

We hold that when law enforcement has

probable cause to believe a defendant has committed

the offense of criminal vehicular homicide or

operation under Minn. Stat. § 609.21 (2006), it is

important that the defendant's 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, provided that the police have probable

cause to believe that defendant committed criminal

vehicular homicide or operation.

Reversed and remanded.

App. 27

DISSENT

MEYER, Justice (dissenting).

I respectfully dissent. The majority today has

created a new rule of law that erodes the right of

citizens in Minnesota to be secure from unreasonable

searches and seizures under the United States and

Minnesota Constitutions. I would proceed with a

more cautious approach, apply our long-standing rule

of law that a search and seizure conducted without a

warrant is per se unreasonable, and hold that when a

police officer has probable cause to believe that a

suspect has committed criminal vehicular operation,

a blood sample may be taken without the suspect's

consent if the officer has a reasonable belief that the

delay necessary to obtain a warrant, under the

circumstances, threatens the destruction of evidence.

The charges in this case stem from an incident

on May 8, 2006, at approximately 9:26 p.m., when the

complaint alleges respondent Janet Sue Shriner was

involved in an accident in the area of McAndrews

Road and 141st Street in Burnsville, Minnesota. The

complaint alleges that Shriner drove into oncoming

traffic, hit another car head-on, and then continued

driving, at times on the sidewalk. The driver of the

other car was taken to the hospital with head and leg

injuries.

Burnsville police were dispatched after the

accident to find respondent. Respondent was finally

stopped when a police car bumped her car and caused

it to spin and go up onto a cement median.

Respondent refused to get out of her car, and the

police forcibly removed her from her car after

breaking a window and opening the door. The police

observed that respondent had bloodshot, glazed-over

App. 28

eyes, smelled of alcohol, and could not stand on her

own. Respondent did not appear to be injured.

Respondent was arrested. She was then taken

to a nearby hospital where her blood was drawn. The

police did not ask for respondent's consent to draw

blood, did not give respondent an implied-consent

advisory before ordering her blood drawn, and did not

obtain a search warrant for the blood draw. The blood

draw occurred approximately 45 minutes after the

accident. Subsequent analysis of respondent's blood

showed a blood alcohol content of 0.33.

Appellant State of Minnesota’ charged

respondent with: (1) two alternative counts of first-

degree driving while impaired, in violation of Minn.

Stat. §§ 169A.20, subds. 1(1) and 1(5) (2006), and

169A.24 (2006); (2) fleeing a peace officer in a motor

vehicle, in violation of Minn. Stat. § 609.487, subd. 3

(2006); (3) criminal vehicular operation, in violation

of Minn. Stat. § 609.21, subd. 2b(4) (2006); (4) driving

after license cancellation, in violation of Minn. Stat. §

171.24, subd. 5 (2006); (5) leaving the scene of an

accident, in violation of Minn. Stat. § 169.09, subds. 1

and 14(b) (2006); and (6) reckless driving, in violation

of Minn. Stat. § 169.13, subd. 1 (2006).

Respondent filed a motion to suppress the

evidence discovered as a result of the warrantless

removal of her blood. The district court held a

contested omnibus hearing on respondent's motion on

November 22, 2006. Respondent agreed that the

police had probable cause to draw her blood, but she

contended the withdrawal was’ unconstitutional

because the police did not show exigent

circumstances existed to justify a warrantless

seizure.

App. 29

On January 16, 2007, the district court granted

respondent's motion to suppress the _ evidence

discovered as a result of the blood draw. The district

court ruled that the seizure was illegal because

neither exigent circumstances nor evidence that the

officers might have reasonably believed that they

were confronted with an emergency existed. The

district court ordered the evidence obtained as a

result of the warrantless removal of respondent's

blood suppressed, and it dismissed the counts of

driving while impaired based upon a blood-alcohol

concentration of .08 or greater and criminal vehicular

operation for lack of probable cause to proceed to

trial.

In its appeal of the pretrial order by a

prosecuting attorney, the State argued that the

district court erred when it granted respondent's

motion to suppress. It contended that many cases of

both this court and the court of appeals hold that the

evanescent nature of blood-alcohol evidence alone

supports a finding of exigent circumstances so that a

warrantless blood draw is legal when the police have

probable cause to believe a defendant violated the

criminal vehicular operation statutes.

The court of appeals affirmed the suppression

of the evidence obtained from respondent's blood

draw. State v. Shriner, 739 N.W.2d 432, 439-40

(Minn. App. 2007). The court of appeals ruled that in

order for a warrantless, nonconsensual blood draw to

meet the requirements of the Fourth Amendment,

there must be probable cause and_ exigent

circumstances. Id. at 436. After discussing several

App. 30

opinions by this court,! it found that “[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.” Jd. at 437. After

reviewing decisions from other jurisdictions, the court

of appeals decided that whether’ exigent

circumstances exist must be determined based upon

the totality of the circumstances, and that the

question was whether “there are factors, together

with the suspected presence of alcohol, that

constitute exigent circumstances sufficient to justify

the warrantless blood draw.” Id. a 438. Such factors

include the amount of time that has elapsed since the

accident, the potential unavailability of the defendant

once he or she is taken to the hospital for treatment,

and the difficulty in obtaining a warrant. Jd. at 436-

37.

The court of appeals then examined the facts of

the case and determined that exigent circumstances

did not exist. Jd. at 438-40. It noted the absence of

other factors that would support a finding of exigent

circumstances, such as respondent being injured, or

the arresting officer having competing

responsibilities because he or she was responsible for

other injured people or the crime scene. Jd. The court

of appeals concluded that, “[b]ased on a two-hour rule

Tne court of appeals discussed State v. Heaney, 689 N.W.2d

168 (Minn. 2004); State v. Paul, 548 N.W.2d 260 (Minn.

1996); State v. Aguirre, 295 N.W.2d 79 (Minn. 1980); and

State v. Oevering, 268 N.W.2d 68 (Minn. 1978). Shriner, 739

N.W.2d at 436-37.

App. 31

to establish guilt” under the DWI and criminal

vehicular operations statute, “the question becomes

whether a warrant could reasonably have been

obtained within a timeframe that would not have

compromised the test results.” Id. at 438. The court of

appeals then noted that a warrant could have been

obtained directly by the police from a judge over the

telephone, and it cited a case where a telephone

warrant was obtained at night in a little more than

an hour. Jd. at 439. Because the record was silent on

the local warrant process and the State did not claim

there is any difficulty in obtaining 4 nighttime or

telephone warrant, the court of appeals was

unwilling to assume that the time needed to obtain a

warrant created exigent circumstances. Id at 440.

On appeal to this court, the State argues that

the law enforcement community has been operating

under a “bright-line rule” that the dissipation of

alcohol alone creates a sufficient exigency to dispense

with the warrant requirement in criminal vehicular

operation cases. Indeed, at oral argument, the State

represented that law enforcement personnel in this

state routinely take warrantless blood draws in

criminal vehicular operation cases on the belief that

they need make no showing that it is impractical to

obtain a warrant. The State argues that the U.S.

Supreme Court in Schmerber v. California, 384 U.S.

757 (1966), announced a “single-factor”’ exigent

circumstance exception to the warrant requirement,

this “single-factor” exigency was subsequently

incorporated into the doctrine justifying warrantless

body searches in the case of Cupp v. Murphy, 412

U.S. 291 (1973), and this court subsequently adopted

a single-factor test for warrantless blood draws in

App. 32

reliance on Schmerber and Cupp.

Shriner contends that neither the U.S.

Supreme Court nor this court has held that the

dissipation of alcohol dispenses with the warrant

requirement altogether. Shriner asserts’. that

Schmerber did not categorically recognize blood-

alcohol exigency. Rather, Shriner’' contends,

Schmerber announced a more prudent rule of law

that considers whether the facts of a particular case

justify a warrantless blood draw.

The question, therefore, is whether the State is

correct that Schmerber, Cupp, and this court's

precedent have already concluded that a single-factor

exigency applies to warrantless blood draws. For the

reasons set forth below, I would conclude that U.S.

Supreme Court and Minnesota precedent do not

answer the question in favor of the State and,

moreover, the holding in Schmerber compels the

conclusion that a totality of the circumstances test

remains the appropriate test in this case.

The Fourth Amendment to the United States

Constitution guarantees “[t]he right of the people to

be secure in their persons * * * against unreasonable

searches and seizures.” This right is guaranteed by

the requirement that a police officer obtain a warrant

based on probable cause from a neutral and detached

magistrate. United States v. Place, 462 U.S. 696, 701

(1983); Schmerber, 384 U.S. at 770. A_ search

conducted without a warrant is per se unreasonable.

Place, 462 U.S. at 701. There are a few well-

recognized exceptions to the requirement of a

warrant, one of which is the situation of exigent

circumstances. See td.

In Schmerber v. California, the United States

App. 33

Supreme Court apphed a _ totality of the

circumstances twst to determine whether exigent

circumstances justified a warrantless blood draw to

preserve evidence of the suspect's blood-alcohol

content. 384 U.S. at 76672. Considering the “special

facts” that “the percentage of alcohol in the blood

begins to diminish shortly after drinking stops,” id. at

770-71, that the driver and passenger were injured

and needed medical assistance, see id. at 758 n.2,

770-71, that the officer needed to investigate the

scene of the accident, id. at 770-71, and that these

last two tasks would take a considerable amount of

time, see id, the Court determined the officer was

reasonable in believing “he was confronted with an

emergency, in which the delay necessary to obtain a

warrant, under the circumstances, threatened ‘the

destruction of evidence,” id. at 770 (quoting Preston

uv. United States, 376 U.S. 364, 367 (1964)). In

concluding that the defendant's Fourth and

Fourteenth Amendment rights to be free of

unreasonable searches and seizures had not been

violated, however, the Court made a point of

considering all of the facts in the case:

It bears repeating, however, that we

reach this judgment only on the facts of

the present record. The integrity of an

individual's person is a cherished value of

our society. That we today hold that the

Constitution does not forbid the State's

minor intrusions into an individual's body

under stringently limited conditions in no

way indicates that it permits more

substantial intrusions, or intrusions

under other conditions.

App. 34

Id. at 772 (emphasis added). Schmerber clearly does

not support a conclusion that a single-factor exigent

circumstances exception to the warrant requirement

is available simply because of the “rapid, natural

dissipation of alcohol in the blood.” Rather,

Schmerber calls for an individualized determination,

based on all the circumstances, of whatever exigent

circumstances are present.

The majority asserts that “the Supreme Court

has stated in subsequent decisions that its holding in

Schmerber justifies a warrantless blood draw based

on the imminent destruction of alcohol caused by the

natural processes of the body,” citing decisions in

Skinner v. Ry. Labor Executives’ Ass 'n, 489 U.S. 602,

623 (1989), and South Dakota v. Neville, 459 U.S.

553, 559 (1983). The majority's reliance on these two

decisions to justify finding exigent circumstances

based only on the natural dissipation of alcohol in the

bloodstream is entirely misplaced. In Skinner, the

Court addressed the issue of whether’ the

government's need to monitor compliance with

restrictions on certain railway employees’ use of

alcohol and drugs justified warrantless blood and

urine tests for all employees involved in an accident

or other defined incident, without individualized

suspicion. 489 U.S. at 609, 621. The case was brought

as a facial challenge to regulations promulgated by

the Federal Railroad Administration, id. at 606, and

therefore what constitutes “exigent circumstances”

was not at issue. The Skinner Court cited Schmerber

for the propositions that alcohol is eliminated from

the bloodstream at a constant rate and that blood and

breath samples must therefore be taken as soon as

possible after a_ triggering event. Jd. Other

App. 35

circumstances contributed to the Skinner Court's

conclusion that the regulations were constitutional:

the regulations narrowly defined the circumstances

in which testing could be imposed on employees, td.

at 622; employees certainly knew well before any

testing what these circumstances were, id.; private

railroad supervisors would be setting the testing

process in motion, and it would be unreasonable to

impose “unwieldy warrant procedures” upon persons

who, unlike law enforcement, are not familiar with

such procedures, id. at 623-24 (quoting O'Connor v.

Ortega, 480 U.S. 709, 722 (1987)). This is not a single

factor, but the totality of the particular

circumstances.

In Neville, the Supreme Court's conclusion that

“Schmerber * * * clearly allows a State to force a

person suspected of driving while intoxicated to

submit to a blood-alcohol test” results from its

analysis of Schmerber's holding on the Fifth

Amendment challenge to the blood test. 459 U.S. at

559. Neville rejected the claim that admission of

evidence of refusal violates the privilege against self-

incrimination. Jd. at 564. Neville clearly did not hold

that Schmerber was intended to create a single-factor

exigency.

Nor does this court's precedent. We have

recognized two tests for exigent circumstances:

“single factor exigent circumstances, and * * *

‘totality of the circumstances.” State v. Gray, 456

N.W.2d 251, 256 (Minn. 1990). We have said that

“imminent destruction or removal of evidence” is one

of those single-factor situations. In re Welfare of

D.A.G., 484 N.W.2d 787, 791 (Minn. 1992): State uv.

Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (describing

App. 36

the single-factor test as “a situation in which a single

matter, such as a fleeing felon or danger to persons or

evidence, is highly compelling”); Gray, 456 N.W.2d at

256 (citing Schmerber, 384 U.S. at 770-71). We have

said in dicta that Schmerber “recognize[s] the power

of a peace officer to compel a blood sample from a

driver where there is probable cause to believe the

driver has violated a criminal vehicular operation

law.” State v. Heaney, 689 N.W.2d 168, 173 n.2

(Minn. 2004).

The majority insists that if the single-factor test

is met, we do not need to consider the totality of the

circumstances. My disagreement with the majority is

over whether the “single-factor” test for “imminent

destruction or removal of evidence” can be met simply

because alcohol dissipates in the bloodstream. Until

today, this court has never abandoned the

requirement that in invoking “imminent destruction

or removal of evidence” as a single-factor exigency,

the State must explain why the peace officer could

reasonably believe that the evidence would “suddenly

disappearf].” D.A.G., 484 N.W.2d at 791 (finding the

State had “wholly failed to provide facts to support

the existence of exigent circumstances under the

‘single factor’ test”). Focusing on the “loss of [blood-

alcohol content] evidence with every passing minute

from the time the accident occurred until the blood

draw is taken,” the majority fails to accord any

attention to the length of delay occasioned by

fulfilling the warrant requirement. Yet it 1s the

length of the delay that determines whether the

evidence will disappear. The majority asserts that “it

is undisputed that this loss of the most probative

evidence of criminal vehicular operation occurs

App. 37

during the time it takes to obtain a warrant.” I

disagree. A blood draw can never be obtained at the

precise moment of the accident. As a result, in any

case where blood-alcohol content evidence is crucial,

an expert witness must extrapolate from the results

of the test to determine what the blood-alcohol

content was at the moment of the accident. Nothing

in this record establishes that a blood draw taken 45

minutes after the accident, as it was in Shriner's

case, would be more probative than a blood draw

taken 2 hours after the accident.

When addressing the constitutionality of taking

blood samples without a warrant, this court has

consistently taken into account all circumstances that

inform the question of whether a peace officer could

reasonably believe there was a risk of “imminent

destruction or removal of evidence.” In State v.

Oevering, 268 N.W.2d 68, 74 (Minn. 1978), this court

concluded that blood alcohol evidence would have

been lost not only because alcohol dissipates with the

passage of time, but also because more than 4 hours

had passed since the accident.? In State v. Storvick,

428 N.W.2d 55, 60-61 (Minn. 1988) where the

warrantless entry into a suspect's residence was at

issue, the police officers' objective belief that a blood-

alcohol test was necessary constituted an exigent

circumstance when 2 hours had elapsed between a

fatal accident and the decision to enter the home,

there was strong probable cause that the suspect was

in the home and refused to answer repeated knocks

on the door, and there was the “additional fact” that

The issue in the case was whether an arrest was necessary.

Oevering, 268 N.W.2d at 72.

App. 38

alcohol levels diminish soon after drinking stops. This

court expressly limited its decision to the facts of the

case. Id. at 61.

In State v. Speak, 339 N.W.2d 741, 745 (Minn.

1983), where the issue was probable cause, this court

noted that “[e]xigent circumstances were clearly

present,” but did not discuss why. One hour and 10

minutes passed between the time the police were

called to the scene of the accident and the time the

breath test was administered. Id. at 742-43. In State

v. Paul, 548 N.W.2d 260, 265-66 (Minn. 1996), this

court upheld the warrantless entry into a suspect's

home to arrest him because there were two kinds of

exigent circumstances: hot pursuit and imminent

destruction of evidence. We found that “the need to

preserve evidence of Paul's blood alcohol level is a

compelling exigent circumstance,” id. at 266

(emphasis added), but we did not conclude that

exigent circumstances existed based only on the fact

that “the percentage of alcohol in the blood begins to

diminish shortly after drinking stops,” id. at 267

(internal quotation marks omitted). In finding that

evidence was at risk of destruction, we noted that the

suspect's blood-alcohol level “might have dissipated

while a warrant was being obtained, or [he} might

have drunk more alcohol, making a chemical test

unreliable.” Jd. We did not mention a single-factor

exigent circumstance, but rather held that “an officer

in hot pursuit of a person suspected of the serious

offense of driving under the influence of alcohol may

make a warrantless entry into the suspect's home in

order to effectuate an arrest.” Jd. This court thus

relied on the totality of the circumstances to support

the conclusion that there was no time to get a

App. 39

warrant.

Other opinions of this court do not address

what is necessary to find the single-factor exigent

circumstance of imminent destruction of evidence. In

State v. Aguirre, 295 N.W.2d 79, 80-81 (Minn. 1980),

the issue was whether a blood sample taken because

the officer had probable cause to believe a felony

offense had been committed could be used as evidence

when the State chose instead to prosecute the suspect

for a misdemeanor offense. This court stated that the

officer “knew that it was essential that he obtain the

blood sample without delay and without regard to

whether defendant would consent,” but the court did

not explain what facts led to this conclusion. Jd. at

82. In State v. Lee, 585 N.W.2d 378, 380, 383 (Minn.

1998), where the issue was what kind of probable

cause was required, this court upheld the taking of a

blood sample when the standard implied consent

advisory was read to the suspect and he refused to

submit to the test. There was no discussion of exigent

circumstances. These cases are thus not helpful to

deciding the issue here.

In Tyler v. Commissioner of Public Safety, 368

N.W.2d 275, 277 (Minn. 1985), this court reviewed

the civil revocation of a driver's license under the

implied consent law. The issue was whether the

police officer had probable cause to require the driver

to submit to a test. Jd. at 278. This court did not

address exigent circumstances, but simply stated that

federal constitutional law permits a warrantless

blood draw if there is probable cause to believe the

suspect has committed the offense of DWI and the

draw is necessary to preserve evidence. Id. (citing

South Dakota v. Neville, 459 U.S. 558, 558-64 (1983)

App. 40

(using analysis under Fifth Amendment to conclude

that suspect's refusal to consent to test was not

protected by the privilege against self-incrimination);

Cupp v. Murphy, 412 U.S. 291, 295-96 (1973)

(allowing a limited search under suspect's fingernails

as a search incident to arrest, necessary to preserve

evanescent evidence); Aguirre, 295 N.W.2d 79). Tyler

thus offers no help in discerning whether the simple

fact that alcohol dissipates in the bloodstream

constitutes exigent circumstances.

In conclusion, a review of our cases leads me to

the conclusion that our case law does not support a

holding that the natural dissipation of alcohol alone

creates exigent circumstances justifying a

warrantless, nonconsensual blood draw. Rather, we

have consistently applied a rule of law that requires a

reasonable belief by the officer that there is not

enough time to obtain a warrant. I would thus decline

to adopt a per se rule.

The majority contends that the view urged by

Shriner is “the minority view.” | strongly and

respectfully disagree with this characterization of the

holdings of other courts. In two of the cases cited by

the majority in footnote 11, the presence of exigent

circumstances was not at issue. See State v. Entrekin,

47 P.3d 336, 348 (Haw. 2002) (the defendant did not

dispute that exigent circumstances were present);

State v. Woolery, 775 P.2d 1210, 1212-13 (Idaho 1989)

(the defendant argued probable cause and lack of

conformity with Idaho's implied consent statute). In

cases where the exigent circumstances exception is

not squarely at issue but addressed only briefly, I do

not find the detailed reasoning necessary to conclude

that a single-factor exigency exists. See State uv.

App. 41

Baker, 502 A.2d 489, 492-94 (Me. 1985) (discussion of

probable cause and exigent circumstances not

separated).

Other cases cited by the majority in support of

a bright-line rule are not on point. See United States

uv. Hagle, 498 F.3d 885, 892 (8th Cir. 2007); United

States v. Reid, 929 F.2d 990, 993 (4th Cir. 1991);

State v. Cocio, 709 P.2d 1336, 1344-45 (Ariz. 1985);

State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1998).

The Cocio court offered no reasoning for its

interpretation of Schmerber, and Cocio differs

factually from this case because the blood draw was

initiated by a doctor for medical reasons, rather than

by law enforcement. 709 P.2d at 1345. The Eagle

court stated that “[e]xigent circumstances exist when

there is a risk of destruction of evidence, including a

risk that a defendant's blood-alcohol content will

dissipate because ‘the body functions to eliminate

[alcohol] from the system.” 498 F.3d at 892

(alteration in original) (quoting Schmerber, 384 U.S.

at 77071). But the court did not base its

determination that exigent circumstances existed on

the simple fact that alcohol dissipates in the

bloodstream; it considered whether a warrant could

be obtained before the evidence was destroyed or

removed. Jd. Specifically, the court noted that nearly

2-1/2 hours had already passed between the accident

and the blood draw and concluded that further delay

would have allowed “further dissipation of alcohol”

and created a risk that the suspect would be

unavailable for a blood draw upon the officer's return.

Id.

In Reid, where a breathalyzer test was at

issue, the court took pains to explain that a

App. 42

telephonic search warrant does not eliminate the

exigency because compliance with the rules for

obtaining one takes time and “[tlime is what is

lacking in these circumstances.” 929 F.2d at 993. The

finding of exigent circumstances thus depends not

only on the dissipation of alcohol, but also on the fact

that obtaining a warrant creates a delay long enough

to destroy the evidence. The Reid court explicitly laid

out three factors in holding that exigent

circumstances were present: societal recognition of

the government's interest in protecting citizens from

drunk drivers, necessity of prompt testing for alcohol

in the bloodstream, and the fact that “[b]Jreathalyzer

tests cause a lesser intrusion than blood tests.” Id. at

994. The Reid court's conclusion does not inform our

decision here, because its holding § concerned

breathalyzer tests rather than blood tests.

Only one other court that has directly

addressed the precise issue before us has concluded

that a per se exigency exists. In State v. Bohling, 494

N.W.2d 399, 402 (Wis. 1993), the Wisconsin Supreme

Court concluded that Schmerber must be read as

creating a single-factor exigency, without explaining

how such an interpretation was possible in the face of

Schmerber's admonition that its holding “in no way

indicates that [the Constitution] permits more

substantial intrusions, or intrusions under other

conditions,” 384 U.S. at 772. For this reason, I do not

find the Bohiling court's reasoning persuasive.

One other state court directly addressing the

precise issue in this case is persuasive on why this

court should reject a per se exigency. State v.

Rodriguez, 156 P.3d 771 (Utah 2007). In reading

Schmerber, the Utah court pointed to three categories

App. 43

of “special facts” that combined to create an exigency,

as well as to the Court's emphasis on the “stringently

limited conditions” under which a_ warrantless

intrusion could be made into an individual's body. Id.

at 776. It refused to assume that unacceptable delay

always accompanies efforts to obtain a warrant,

pointing to the availability of technology to aid in

more rapid procedures. Jd. at 778. It expressed

confidence in the ability of law enforcement officials

and courts to request and issue warrants within a

timeframe that ensures the preservation of evidence.

Id. at 779.

The Iowa Supreme Court recently addressed

the admission of test results from a warrantless blood

draw, within the context of its implied consent

statute, and rejected Bohling’s reasoning in favor of

Rodriguez's. State v. Johnson, 744 N.W.2d 340, 344

(lowa 2008). Interestingly, in both Rodriguez and

Johnson, the court considered the totality of the

circumstances and concluded that the warrantless

blood draw did not violate the Fourth Amendment.

Johnson, 744 N.W.2d at 344-45; Rodriguez, 156 P.3d

at 782.

Based on my reading of Schmerber, of this

court's precedent, and of decisions from other courts,

I would hold that an individual determination of

whether exigent circumstances exist, based on the

totality of the circumstances, must be made in each

case. Like the Rodriguez court, I am confident that

law enforcement and the courts in Minnesota are

fully able to evaluate the circumstances and make

these determinations without a per se exigency. |

would not, as the majority suggests, require police

officers to know with certainty how long it would take

App. 44

to obtain a warrant or when the suspect had his or

her last drink. I would simply require that the officer

be reasonable in his or her belief that the delay

necessary to obtain a warrant would result in

destruction of the blood-alcohol evidence.

In this case, the police officer who stopped and

arrested Shriner did not have the responsibility of

investigating the accident or seeking medical

attention for any injured person. Nor did Shriner

herself need medical attention. The officer was not

worried that Shriner would quickly “slip under the

legal limit.” The accident occurred close to a hospital.

The State presented no evidence of exigent

circumstances other than the natural dissipation of

alcohol in the bloodstream. Applying a "totality of the

circumstances" test, I would affirm the district court's

suppression of Shriner's blood test results.

ANDERSON, Paul H., Justice (dissenting).

I join in the dissent of Justice Meyer.

App. 45

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-181

State of Minnesota,

Appellant,

vs.

Janet Sue Shriner,

Respondent.

Filed October 2, 2007

Affirmed

Minge, Judge

Dissenting, Willis, Judge

Dakota County District Court

File No. K8-06-1570

Lori Swanson, Attorney General, 1800 Bremer Tower,

445 Minnesota Street, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Debra

E. Schmidt, Assistant County Attorney, Dakota

County Judicial Center, 1560 Highway 55, Hastings,

MN 55033 (for appellant)

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.

SYLLABUS

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.

App. 46

OPINION

MINGE, Judge

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.

FACTS

Respondent Janet Shiner was involved in a

two-car motor-vehicle accident on May 8, 2006, at

approximately 9:26 p.m. in Burnsville. Shiner drove

her vehicle in the wrong lane of traffic and struck

another vehicle head-on, injuring the driver of the

other vehicle. Shiner fled the scene of the accident in

her vehicle. Burnsville Police Officer Maksim

Yakovlev was dispatched to find Shiner. Officer

Yakovlev located and, with the assistance of another

officer, forcibly stopped Shiner's vehicle. Because

Shiner did not comply with the officers' requests to

step out of her vehicle and its doors were locked, the

officer broke a window, opened a door, and removed

Shiner. Officer Yakovlev observed that Shiner's eyes

were bioodshot and glazed-over, that she smelled of

alcohol, and that she could not stand on her own. He

also observed that she was not injured.

Officer Yakovlev arrested Shiner’ and

transported her to nearby Fairview Ridges Hospital.

Once there, he directed hospital staff to make a blood.

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

App. 47

was given to her. Officer Yakovlev testified that he

was not “worried [that Shriner] was about to shp

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 count» including first-degree driving while

impaired, in vioiation of Minn. Stat. § 169A.20, subd.

1(5) (2004), and criminal vehicular operation

resulting 1n 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.

ISSUES

I. Did the suppression of blood-test

results have a critical impact on the

state's case?

ia. Did the district court err in suppressing

the blood-test evidence?

ANALYSIS

The 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 (Minn.

1999). If the state appeals from a pretrial suppression

App. 48

order, it must “clearly and uneqwivocally show both

that the [district] court's order will have a critical

impact on fits] ability to prosecute the defendant

successfully and that the order constituted error.”

State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998)

(quotation omitted). “[T]he critical impact of the

suppression must be first determined before deciding

whether the suppression order was made in error.”

Id.

I.

The 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 (Minn. 1987).

Suppression of alcohol-level test results has a critical

impact even if there is other evidence of intoxication.

State v. Ault, 478 N.W.2d 797, 799 (Minn. App. 1991).

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

' 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

App. 49

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.

The United States Constitution's Fourth

Amendment guarantees “[t]he right of the people to

be secure in their persons . . . against unreasonable

searches and seizures.” U.S. Const. amend. IV. Our

state constitution contains a parallel provision. Minn.

Const. art. I, § 10. A search and seizure conducted

without a warrant is per se unreasonable. State v.

Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992). A

warrant must be supported by probable cause. Minn.

Const. art. I, § 10. “The requirement that a warrant

be obtained is a requirement that inferences to

support the search be drawn by a neutral and

detached magistrate instead of being judged by the

officer engaged in the often competitive enterprise of

ferreting out crime.” Schmerber v. California, 384

U.S. 757, 770, 86 S. Ct. 1826, 1835 (1966) (quotation

omitted). But the warrant requirement is “subject...

to a few specifically established and well delineated

exceptions.” State v. Hanley, 363 N.W.2d 735, 738

(Minn. 1985) (quoting Katz v. United States, 389 U.S.

347, 357, 88 S. Ct. 507, 514 (1967)). “The state bears

the burden of showing that at least one of the

exceptions applies in order to avoid suppression of the

evidence acquired from the warrantless search.” State

v. Johnson, 689 N.W.2d 247, 251 (Minn. App. 2004),

count of a multi-count complaint may have critical impact.”

State v. Koenig, 649 N.W.2d 484, 487 (Minn. App. 2002).

App. 50

review denied (Minn. Jan. 20, 2005). One such

exception is the existence of exigent circumstances.

State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996).

The administration of a blood test is considered

a search that must comply with the Fourth

Amendment. Schmerber, 384 U.S. at 767, 86S. 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 (Minn. 1980). Probable cause to search exists

when, given the totality of the circumstances, “there

is a fair probability that contraband or evidence of a

crime will be found in a particular place.” State v.

Zanter, 535 N.W.2d 624, 633 (Minn. 1995). Here,

Shriner stipulates that the deputy had probable

cause to believe that she was under the influence of

alcohol. Therefore, the sole disputed issue in this case

is whether exigent circumstances justified the

warrantless, nonconsensual blood draw.

When determining whether the _ situation

presented exigent circumstances, we examine the

totality of the circumstances. State v. Lohnes, 344

N.W.2d 605, 611 (Minn. 1984). But “fe]xigent

circumstances can [also] be established .. . by a single

factor.” Johnson, 689 N.W.2d at 251. Exigent

circumstances exist when there is a danger of the

“imminent destruction of evanescent evidence.” Paul,

548 N.W.2d at 264. Because alcohol in the blood has

an evanescent quality, a warrant may not be

necessary for a biood draw, depending on the amount

of time that has elapsed since the accident and the

difficulty in obtaining a warrant. See Schmerber, 384

U.S. at 770-71, 86 S. Ct. at 1836. In Schmerber, the

App. 51

Supreme Court concluded that exigent circumstances

were present because the officer, who authorized a

warrantless blood draw within two hours of an

accident,

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.

Id. at 770-71, 86 S. Ct. at 1835-36 (quotation and

citation omitted). And in conducting an exigent-

circumstances analysis, Minnesota cases have

emphasized factors such as the evanescent nature of

alcohol in the blood, the passage of time, and the

potential unavailability of the defendant once he or

she is taken to the hospital for treatment. See, e.g.,

State v. Oevering, 268 N.W.2d 68, 74 (Minn. 1978).

The 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

App. 52

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 (Minn. 2004); Aguirre, 295 N.W.2d at 79; and

our decision in Johnson, 689 N.W.2d at 252. In Paul,

the supreme court recognized the need for officers to

“act as quickly as possible” to avoid the dissipation of

blood-alcohol evidence. 548 N.W.2d at 267. In Heaney,

the supreme court again noted the “natural exigency

involved in obtaining blood-alcohol evidence.” 689

N.W.2d at 173 n.2. Although the Aguirre decision

upheld the constitutionalhty of a nonconsensual,

warrantless blood draw, the issues on appeal

concerned the lack of an arrest and the interplay

between the implied-consent law and the level of

charges. 295 N.W.2d at 80-83. The Aguirre court did

not consider the U.S. Supreme Court's decision in

Schmerber. And in Johnson, we concluded that, based

on the facts of the case, the possible destruction of

blood-alcohol evidence amounted to an_ exigent

circumstance supporting a warrantless search. 689

N.W.2d at 252. Several other cases deal with the

intricacies of the implied-consent law. See Frederic

Bruno, The Drinking Driver in Minnesota § 2.10

(3rded. 2006).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

2 We emphasize that no implied-consent advisory wes given to

respondent and that we do not consider Minn. Stat. §§

169A.50 - .53 (2006).

App. 53

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

App. 54

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 state. We decline the

opportunity to reject the United States Supreme

Court's decision in Schmerber and to adopt a per se

rule.

The 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 Fairview Ridges

Hospital. Officer Yakovlev quickly transported

Shriner to that hospital and a blood draw was made

less than 45 minutes after she was last in the driver's

seat of her vehicle. He did not give her the implied-

consent advisory or seek her consent to the draw.

Officer Yakovlev did not believe that Shriner was

injured, did not have responsibility for any other

person injured as a result of the accident, and did not

have a crime scene that required his attention. He

was able to focus on acquiring evidence of Shriner's

intoxication. Based on a two-hour rule to establish

guilt under Minn. Stat. §§ 169A.20, subd. 1(5) (2004),

and 609.21, subd. 2b(4) (2004), the question becomes

whether a warrant could reasonably have been

obtained within a timeframe that would not have

App. 55

compromised the test results.

The process for obtaining a search warrant is

set out in the statutes and court rules. See Minn.

Stat. §§ 626.04 to .18 (2006); Minn. R. Crim. P. 36.

Although the prosecuting attorney often handles the

application for a search warrant, law enforcement

may apply directly to the judge. See, e.g., State, City

of Minneapolis v. Cook, 498 N.W.2d 17, 18-19 (Minn.

1993); State v. McGrath, 706 N.W.2d 532, 537 (Minn

App. 2005). In this case, it was evening. The

Burnsville police officers may have had to contact a

prosecuting attorney at home to prepare a warrant

request. Next, law enforcement would have had to

locate a judge, request a warrant, obtain the warrant,

and then provide evidence of the warrant to the staff

at the Fairview Ridges Hospital to authorize the

nonconsensual blood draw. This takes expeditious

action.

Minnesota law authorizes the use of telephonic

warrants. See Minn. R. Crim. P. 36.01. Caselaw has

recognized the availability and validity of telephonic

search warrants. See, e.g., State v. Lindsey, 473

N.W.2d 857 (Minn. 1991). In State v. Raines, 709

N.W.2d. 273, 275 (Minn. App. 2006), review denied

(Minn. Apr. 18, 2006), police officers requested a

telephonic warrant at 3:10 a.m. in Pine County. The

warrant was executed within one hour and fifty

minutes. Jd. And in State v. Cook, 498 N.W.2d 17, 18-

19 (Minn. 1993), a judge issued a telephonic search

warrant less than one hour after the request for the

’ "Generally, the rate by which an individual climinates alcohol

from his lor her] body is 0.015% per hour.” Kimberly S.

Keller, Sobering up Daubert: Recent Issues Arising tn Alcohol.

Related Expert Testimony, 46S. Tex. L. Rev. 111, 125 (2004)

————

App. 56

warrant was made. Here, the state has made no

showing that it would have been unable to obtain a

timely telephonic search warrant.

The 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 (Minn. App. 1993).

But as we have already determined,’ the

constitutional requirements for a nonconsensual

search include both probable cause and either a

search warrant or the existence of one of the warrant

exceptions. Neither the statut. nor the Condon case

mentions the constitutional limits on searches and

the necessity of exigent circumstances to dispense

with search warrants.

We 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 (Minn.

1996). But we assume that the legislature does not

App. 57

intend to violate the constitution. Minn. Stat. §

645.17(3) (2006). We therefore note that Minn. Stat. §

169A.52, subd. 1, does not refer to search warrants.

We construe the subsection as not dispensing with

the warrant requirement when a warrant can be

obtained and is otherwise required by the

constitution. Likewise, we consider the exigent-

circumstances requirement as a part of the statute.

In reaching this conclusion, we emphasize that the

exigent-circumstances requirement is not a _ high

threshold. The physical condition of the suspect and

other persons, the evanescent nature of alcohol in the

blood, and the time requirements needed to obtain a

warrant and a blood test no doubt will combine to

constitute exigent circumstances in most cases.

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

App. 58

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.

DECISION

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.

App. 59

Affirmed.

Dated: October 2, 2007

App. 60

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 imphed 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

App. 61

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. 19885).

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

App. 62

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.

App. 63

STATE OF MINNESOTA DISTRICT

COUNTY OF DAKOTA COURT

FIRST JUDICIAL DISTRICT

State of Minnesota, File No. K8-06- 1570

Plaintiff,

v. FINDINGS OF FACT

AND ORDER

Janet Sue Shriner

Defendant.

The above-entitled matter came on _ for

Contested Omnibus Hearing before the Honorable

David L. Knutson, Judge of District Court, on

November 22,2006, at the Dakota County Judicial

Center in Hastings, Minnesota.

Assistant Dakota County Attorney Debra

Schmidt, Esq. appeared on behalf of Plaintiff.

Jeffrey B. Ring, Esq. appeared on behalf of

Defendant.

Now, THEREFORE, the Court having

considered the matter, being fully advised in the

premises, upon all the files, records and proceedings

herein, and upon the argument of counsel, makes the

following:

FINDINGS OF FACT

1. Probable cause existed to believe that a

blood alcohol test would result in the discovery of

evidence relevant to prosecuting Defendant for a

violation of Minn. Stat. § 609.21 (Criminal Vehicular

Injury).

App. 64

z. Neither exigent circumstances nor

evidence that officers might have reasonably believed

that they were confronted with an emergency existed

in this matter to allow officers to remove Defendant's

blood without a warrant.

3. Defendant's statement regarding

needing to talk to a "counselor" was ambiguous and

related to her alcohol impairment. Therefore the

continued questioning of Defendant did not violate

Defendant's Miranda rights.

ORDER

& Defendant's motion to suppress evidence

discovered as a result of the warrantless removal of

Defendant's blood is granted.

2. Defendant's motion to suppress

Defendant's statement to police on May 8, 2006 is

denied.

3. Counts 2 and 4 of the Complaint filed on

May 10, 2006 are dismissed due to a lack of probable

cause to support the counts.

4. The attached Memorandum of Law is

incorporated herein.

January 11, 2007 BY THE COURT

s/

David L. Knutson

Judge of District Court

App. 65

Memorandum

On May 10, 2006, Plaintiff filed a Complaint

charging Defendant with: Count 1 — First Degree

Driving While Impaired in violation of Minn. Stat. §

169A.20, subd. 1(1), § 169A.24, and § 169A.276;

Count 2 — First Degree Driving While Impaired (over

0.08) in violation of Minn. Stat. § 169A.20, subd. 1(5),

§ 169A.24, and § 169A.276; Count 3 — Fleeing a

Peace Officer in a Motor Vehicle in violation of Minn.

Stat. § 609.487, subd. 3; Count 4 — Criminal

Vehicular Operation Resulting in Bodily Harm (over

0.08) in violation of Minn. Stat. § 609.21, subd. 2b(4);

Count 5 — Driving After Cancellation in violation of

Minn. Stat. § 171.24, subd. 5; Count 6 — Leaving the

Scene of a Personal Injury Accident in violation of

Minn. Stat. § 169.09, subd. 1 and subd. 14(b); and

Count 7 — Reckless Driving in violation of Mimi. -

Stat. § 169.13, subd. 1. These charges stem from an

incident on May 8, 2006 at approximately 9:26 p.m.,

when the Complaint alleges Defendant was involved

in an accident in the area of McAndrews Road and

1415t Street in Burnsville, Minnesota. The Complaint

alleges that Defendant drove in the wrong lane, hit

another vehicle head on, causing a head and leg

injury to a victim in the other vehicle, and then left

the scene of the accident ultimately requiring that

officers forcibly stop her vehicle_and break the front

passenger window of Defendant's vehicle in order to

remove her from the vehicle. Following the stop of

Defendant's vehicle Officer Maksim Yakovlev

transported Defendant to Fairview Ridges Hospital

and had a nonconsensual blood sample drawn from

Defendant by 10:11 p.m. The Implied Consent

Advisory was not read to Defendant and a breath test

App. 66

was not asked for. Defendant was then transported to

the Burnsville Police Department where she gave a

statement to Officer Yakovlev.

At the Contested Omnibus Hearing, Defendant

asked the court to suppress evidence discovered as a

result of the warrantless removal of Defendant's

blood and to suppress Defendant's statement as being

involuntary and in violation of Defendant's Miranda

rights.

The Fourth Amendment warrant requirement

for searches and seizures forbids any intrusions

beyond the body's surface absent a warrant or

emergency. In Schmerber v. California, 384 U.S. 757,

770-771(1966), blood was withdrawn from _ the

defendant, without his consent, while the defendant

was receiving treatment for injuries at the hospital.

The Court concluded “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 seck out a

magistrate and secure a warrant.” Therefore, “/g/iven

these special facts” (emphasis added), Id. at 771, and

“only on the facts of the present record” (emphasis

added), Id. at 772, the minor intrusion of an

emergency nonconsensual blood draw was

appropriate incident to the defendant's arrest. Based

upon Schmerber, courts have adopted a two part test

of probable cause to believe evidence of a crime

would be discovered and exigent circumstances, for

the warrantless nonconsensual removal of blood. See

e.g., State v. Aguirre, 295 N.W.2d 79 (Minn. 1980).

In the present matter, Defendant does not argue that

officers lacked probable cause to believe evidence of a

crime would be discovered. Defendant argues only

that exigent circumstances did not exist in this

App. 67

matter.

“The United States Supreme Court has

determined that exigent circumstances exist in cases

of hot pursuit [United States v. Santana, 427 U.S. 38

(1976)], danger-to human life [Warden, Maryland

Penitentiary v. Hayden, 387 U.S. 294 (1967)],

imminent destruction of evanescent evidence

[Schmerber, 384 U.S.], and possible flight of a suspect

[Johnson v. United States, 333 U.S. 10 (1948)].” State

v. Paul, 548 N.W.2d 260, 264 (Minn. 1996), citing

State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984).

In the present raatter, Defendant was in custody and

had no injuries of any kind, therefore the only exigent

circumstance that could exist is the imminent

destruction of evanescent evidence.

Defendant argues that based on the Minnesota

Court of Appeals' unpublished decision in State v.

Keocher, CX-02-2251 (Minn. App. 2003), there was

insufficient proof of imminent destruction of

evanescent evidence and_ therefore exigent

circumstances did not exist under the facts present.

The Keocher court held that where there is minimal

lapse of time between the accident and the blood

withdrawal and there are no allegations that the

defendant required prolonged medical, care that

would make the defendant unavailable, that there

may be an insufficient proof of exigent circumstances.

Defendant argues that in the present matter only

forty-five (45) minutes had elapsed between the

accident and the blood withdrawal, that there was no

need for Defendant to be hospitalized, and therefore

there is insufficient proof of exigent circumstances.

Plaintiff argues that Keocher is inapplicable to the

present matter because Keocher dealt with a single

App. 68

car accident and therefore Criminal Vehicular

Operation ‘could not have been charged.

Plaintiff counters Defendant's claims’ by

arguing that a natural exigency exists in obtaining

blood-alcohol evidence that will naturally dissipate

from the body. Plaintiff bases this argument,

however, on a mistaken belief that the Schmerber

decision, and its progeny, create a bright line rule

that exigent circumstances always exist in regards to

blood-alcohol evidence. On the contrary, while

Schmerber does note that alcohol in the blood begins

to dissipate shortly after drinking stops, the court

was very careful to state that Schmerber was decided

on the specific facts present in that case, and that a

nonconsensual blood draw requires both probable

cause and exigent circumstances. If the Schmerber

holding was that dissipation of blood alcohol is

always an exigent circumstance, in and of itself, the

second prong of the test would be unnecessary. The

inclusion of the requirement of exigent

circumstances, however, coupled with the statement

that Schmerber was decided on the specific facts,

means that this court must look at the specific facts

of this matter to determine whether exigent

circumstances existed. To do otherwise would

eliminate the second prong of the Schmerber test,

require that there only be probable cause to believe

the individual was involved in the accident, and be in

clear violation of controlling constitutional law.

Turning then to the question of when a danger

of imminent destruction of the evidence exists, it 1s

unclear from the Schmerber opinion exactly how

much time had elapsed in Schmerber between the

accident and blood draw, however, a footnote in State

App. 69

v. Keocher, CX-02-2251 (Minn. App. 2003), states

that two (2) hours had elapsed in Schmerber.

Additionally, other courts have held that exigent

circumstances existed when four (4) hours had

elapsed since the accident and the suspect was

unconscious, State v. Oevering, 268 N.W.2d 68, 74

(Minn. 1978), when three (3) hours had elapsed since

the accident, State v. Storvick, 428 N.W.2d 55 (Minn.

1988), when one (1) hour and ten (10) minutes had

passed before a breath test was administered, State

v. Speak, 339 N.W.2d 741 (Minn. 1983), and when

blood alcohol content needs to be determined “within

a reasonable time following the accident,” State v.

Johnson, 689 N.W.2d 247, 252 (Minn.App. 2004). In

the present matter, a mere forty-five (45) minutes

elapsed between the accident and nonconsensual

drawing of Defendant's blood.

Nonetheless, Plaintiff argues that Minnesota

case law refutes Defendant's claim that exigent

circumstances did not exist in this matter. To support

this argument Plaintiff cites a number of cases that

fail to explain why exigent circumstances existed

under their facts, and therefore the cases' holdings

are only of slight use in the decision facing the court

in the present matter.

First, State v. Paul, 548 N.W.2d at 267-268, held

that exigent circumstances existed to allow for a

warrantless entry into a home in order to effectuate

arrest when officers were in hot pursuit of a drunk

driving suspect that fled into the home, the ‘suspect

would not answer the door, and the suspect's wife

claimed the suspect was not home. Paul, however,

deals only with an officer's need to enter a home to

avoid dissipation of alcohol or a defendant drinking

App. 70

more alcohol. Id. at 267. Additionally, the court in

Paul was careful to limit its holding by stating, “we

hold only that an officer in hot pursuit of a person

suspected of the serious offense of driving under the

influence of alcohol may make a warrantless entry

into the suspect's home in order to effectuate arrest.”

Id. at 268. Clearly, the primary exigent circumstance

in Paul was that of hot pursuit.

Second, State v. Heaney, 689 N.W.2d 168, 173

n.2 (Minn. 2004), a case dealing with a conflict of

laws regarding doctor/patient privilege, provides no

support for Plaintiff s argument by simply noting ina

footnote that there is a power to compel a blood test,

but not discussing, beyond citing Schmerber and

Oevering, when that power may be used. Similarly,

State v. Aguirre, 295 N.W.2d 79 (Minn. 1980), which

deals primarily with whether Minnesota statute bars

the use of blood removed when a felony is suspected,

but only a misdemeanor is charged, simply reiterates

that warrantless nonconsensual removal of blood is

allowed when there is probable cause and exigent

circumstances. Also, State v. Mellett, 642 N.W.2d 779

(Minn. App. 2002), simply states that Schmerber

allows for warrantless blood draws during a

discussion of whether the state may criminalize test

refusal in a DWI case. Heaney, Aguirre, and Mellett

are therefore not useful in weighing the facts in the

present matter.

Third, Tyler v. Commissioner of Public Safety,

368 N.W.2d 275, 278 (Minn. 1985), a case dealing

with whether warrantless nonconsensual blood tests

are admissible in Implied Consent proceedings, cites

South Dakota v. Neville, 459 U.S. 553 (1983), Cupp v.

Murphy, 412 U.S. 291 (1973), and Aguirre, to simply

App. 71

state, without any reasoning that would be useful to

this court, that the blood test was “justified under the

constitution.” Similarly, the court in State v. Lee, 585

N.W.2d 378 (Minn. 1998), fails completely to discuss

the exigent circumstances requirement and deals only

with whether officers had probable cause to make a

warrantless nonconsensual blood draw in_ that

particular case before ruling the test constitutional.

These blanket statements that a particular blood test

was constitutional do little to inform this court on

whether the specific facts of the present case rise to

the level of exigent circumstances as defined by the

U.S. Supreme Court as hot pursuit, Santana 427

U.S., danger to human life, Hayden, 387 US.,

imminent destruction of evanescent evidence,

Schmerber, 384 U.S., and possible flight of suspect,

Johnson, 333, U.S.

Finally, the courts in both State v. Condon, 497

N.W.2d 272 (Minn. App. 1993) and State v. Raymond,

A03-295 (Minn. App. 2004), simply state that “[t]he

necessity of immediate action to avoid the loss of

[blood alcohol] evidence is an exigent circumstance

justifying the warrantless removal of blood.” Condon,

497 N.W.2d at 275. Neither case explains how much

time had elapsed between accident and testing, gives

any particulars regarding why immediate action was

required, or examines exigent circumstances as

defined hy the U.S. Supreme Court. Therefore they

are not useful to this court in determining whether

immediate action was required in the present matter.

Based on a thorough reading of the foregoing

case law dealing with the warrantless nonconsensual

removal of blood in cases of criminal vehicular

operation it is clear to this court that the facts of each

App. 72

case must be viewed on their own merits when

determining whether exigent circumstances exist,

and that dissipation of alcohol alone is not sufficient

for Plaintiff to make its required showing. As Plaintiff

makes no other argument for why _ exigent

circumstances exist in this matter, the evidence

obtained as a result of the warrantless nonconsensual

removal of Defendant's blood within 45 minutes must

be suppressed and the Counts of the Complaint that

require a blood alcohol content in excess of .08,

Counts 2 and 4, must be dismissed for a lack of

probable cause to proceed to trial.

Defendant also argues that Defendant invoked

her right to counsel after initially waiving her

Miranda rights in this matter. Defendant relies on

the following exchange between Officer Yakovlev and

herself:

Officer Yakovlev: Do you feel that you're

okay to talk, I mean, do you feel like your

impaired by alcohol or drugs or anything

like that right now?

Defendant: Um, I'm impaired by,

urn...uh...like needing to talk to a

counselor.

Officer Yakovlev: You what?

Defendant: Need, need to talk to a

counselor.

Officer Yakovlev: So you're kind of upset

over what happened, is that what you're

saying?

Defendant: Uh-huh.

In Minnesota, “police are not required to stop the

App. 73

interrogation unless the defendant's invocation of

counsel was unambiguous.” State v. Miller, 573

N.W.2d 661, 671 (Minn. 1998). The Miller court based

this statement on the United States Supreme Court

ruling in Davis v. U.S., 512 U.S. 452, 460 (1994), that

requiring “questioning to cease if a suspect makes a

statement that might be a request for an attorney...

{plolice officers would be forced to make difficult

judgment calls about whether the suspect in fact

wants a lawyer even though he has not said so, with

the threat of suppression if they act wrong” (emphasis

in original). In the present matter, Defendant's

statement that she needed to talk to a “counselor”

when stated in response to a question about her

impairment by drugs or alcohol, was clearly

ambiguous and Defendant's statement is therefore

admissible.

DLK

App. 74

STATE OF MINNESOTA

IN SUPREME COURT

A07-181

State of Minnesota,

Appellant,

vs.

Janet Sue Shriner,

Respondent.

ORDER

Based upon all the files, records and

proceedings herein,

IT IS HEREBY ORDERED that the petition

for rehearing filed in the above-entitled matter be,

and the same is, denied.

DATED: July 14, 2008

BY THE COURT:

/s/

Christopher J. Dietzen

Associate Justice

MAGNUSON, E.J., not having been a member

of this court at the time of the argument and

submission, took no part in the consideration or

decision of this case.

App. 75

STATE OF MINNESOTA JUDGMENT

State of Minnesota, Appellant, Supreme Court

vs. Janet Sue Shriner, Respondent Appellate Court

# AO7-181

Trial Court # K8-06-1570

Pursuant to a dectsion of Supreme Court duly

made and entered, tt ts determined and adjudged that

the decision of the Court of Appeals herein appealed

from be and the same hereby is reversed and

remanded to the district court. Judgment is entered

accordingly. A certified copy of the entry of judgment

and the court's decision is herewith transmitted and

made part of the remittitur.

It is further determined and adjudged that

Janet Sue Shriner herein, have and recover of the

State of Minnesota herein the amount of $3,199.50 as

attorney fees in the Court of Appeals and $4, 637.50 as

attorney fees in the Supreme Court.

Dated and signed: July 16, 2008

FOR THE COURT

Attest: Frederick K. Grittner

Clerk of the Appellate Courts

By:

Assistant Clerk

Statement For Judgment

Costs and Disbursements in the Amount of:

Attorney Fees in the Amount of $7,837.00

Other: [enter other items and amount] in the Amount

of:

App. 76

Total: $7,837.00

Satisfaction of Judgment filed:

Dated

Therefore the above judgment is duly satisfied

in full and discharged of record

Attest: Frederick K. Grittner By:

Clerk of the Appellate Courts Assistant Clerk

STATE OF MINNESOTA SUPREME COURT

TRANSCRIPT OF

JUDGMENT

I, Frederick K Grittner, Clerk of the Appellate

Courts, do hereby certify that the foregoing is a full

and true copy of the Entry of Judgment in the cause

therein entitled, as appears from the original record in

my office; that I have carefully compared the within

copy with said original and that the same tis a correct

transcript therefrom.

Witness my signature at the

Minnesota Judicial Center,

In the City of St. Paul July 16,2008

Dated

Frederick K Grittner

Clerk of the Appellate Courts

By:

Assistant Clerk