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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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
rai

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0757%3A1. Public record. Not legal advice.