Opposition Brief — Shriner v. Minnesota (No. 08-506)

FILED

(2) DEC 18 2008

OFFICE OF THE CLERK

No. 08-506

In the

Supreme Court of the United States

Janet Sue Shriner,

Petitioner,

Vv.

State of Minnesota,

Respondent.

On Petition for Writ of Certiorari

from the Supreme Court of the State of Minnesota

BRIEF IN OPPOSITION

JAMES C. BACKSTROM

Dakota County Attorney

Counsel of Record

By: PHILLIP D. PROKOPOWICZ, Chief Deputy

Assistant Dakota County Attorney

Dakota County Judicial Center

1560 Highway 55

Hastings, Minnesota 55033

(651) 438-4438

Attorneys for Respondent

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

QUESTIONS PRESENTED FOR REVIEW

Summary

Petitioner was involved in a personal injury

accident when she drove her car into oncoming traffic.

The police observed indicia of intoxication, placed

Petitioner under arrest and transported her to a

hospital where a blood sample was drawn without a

search warrant. Subsequent analysis of the blood

sample revealed a blood alcohol concentration of 0.33.

The trial court suppressed ,the blood test

results, holding that there was not sufficient exigency

to justify a warrantless blood draw. The Minnesota

Court of Appeals affirmed. The Minnesota Supreme

Court reversed. The Supreme Court held that

".when law enforcement has probable cause to

beheve a defendant has committed the offense of

criminal vehicular homicide or operation...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."

Question

Is the nonconsensual, warrantless withdrawal of a

blood sample in a criminal vehicular operation case a

"single-factor" exigency under Schmerber ov.

California when there exists probable cause to believe

the defendant committed the offense of Criminal

Vehicular Homicide or Operation?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW.......... i

I MIE FAAS LEEIUER BEMIS oe ec coccccesercoscessecsseunsses lil

OPINIONS, ORDERS BELOW.......sccscccecovccvsveees 1

I MN ii ss snvkdnens ven ovsvennesinexesnvakenemeneeee 1

STATUTORY AND CONSTITUTIONAL

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ET wii vinisn'svssevsesvenersveoyensusarsqeraevensenrennee 3

GY s:s0s s00990400 sus ein aeons veaneenenecneeueg ane 21

TABLE OF AUTHORITIES

Pege

UNITED STATES SUPREME COURT

DECISIONS

California v. Carney, 481 U.S. 386; 105 S.Ct. 2000;

Oe a ee le Se Ek isin dactdiesicareneencsins 20

Chimel v. California, 395 U.S. 752; 89 S.Ct. 2034;

SS 4p. Tk. Be GOS CIO ese vesisnstevecseccecessevsuss 9

Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000,

Pe SiR I eC Firion cies vicrnnsiesecveecseveneess 6,9

Illinois v. McArthur, 531 U.S. 326; 121 S.Ct. 946;

246 £4.350. 26 BSS BOO)).. oc ccccnessevvcesecccss 12. 13, 14

Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942,

56 L.Ed.2d 486 (1978).........ccceeeeee. sista, 8

Preston v. United States, 376 U.S. 364, 11 L.Ed.2d

yi RRS a. OG | | es 4

Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826;

COR PR RS 8 84. | eer passim

Skinner v. Railway Labor Exec. Ass 'n, 489 U.S. 602,

109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)....... ii, t2

South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916,

(eR ef) inn rE rs 10

United States v. Place, 462 U.S. 696; 103 S.Ct. 2637,

TT We Br Ci wn nk nick vvascncevevecsvncecces 13

United States v. Santana, 427 U.S. 38 (1976).... 8,9

Warden, MD. Penitentiary v. Hayden, 387 U.S. 294,

16 1,260.20 782, 87 S.Ct. 1642 (1967)..........00 8,13

Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091,

tg Pe Be Bee a eh” | ont 7, 8,9

Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611,

B4 LB: G62 (IGSS)...0 ccs csvccccccscvcascccccsess 10, 11

FEDERAL COURT DECISIONS

Ry. Labor Executives's Assn v. Burnley, 839 F.2d 575

ee esse clicdsnecentensbaceveuseteets 15

United States v. Reid, 929 F.2d 990

(4th Cir. 1991)........ Paha lviecussehspesereseson 14, 17, 19

MINNESOTA DECISIONS

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

I MIE ao his drt wave kendekdene dncde cee vers 4,9,17,19

OUT OF STATE DECISIONS

Aliff v. State, 627 S.W.2d 166

CPU. SEPT, FAD, TEP os cin sc sevccnvchesdoucveseess 16

Bennett v. Coffman, 178 W. Va. 500, 361 S.E.2d 465

«crn ar ea 17

Commonwealth v. Anderl, 329 Pa. Super. 69,

477 A.2d 1356 (Pa. Super. 1984)............... 16

DeVaney v. State, 288 N.E.2d 732, 259 Ind. 483

I Sas asi cos are aac ccnueeun crc besceaneases 16

People v. Ritchie, 130 Cal. App. 3d 455,

181 Cal. Rptr. 773 (Cal. App. 1982)........... 16

People v. Shepherd, 906 P.2d 607 (Colo, 1995)... 15

State v. Baker, 502 A.2d 489 (Me. 1985)............ 16

State v. Blank, 142 P.3d 1210

(AL, Ct. App. 2006)............00.c0cc00sseseseenees, 14, 15

State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399

CWis. 1993), COTE BORIE. 2.0 occ cescecccccscccccscevess 15

iV

State v. Chase Securities, Inc., 188 W. Va. 356,

424 S.E.2d 591 (W. Va. 1992)..........00ecccece.

State v. Cocio, 147 Ariz. 277, 709 P.2d 1336

ee nh beer eeeeensydorveeevcesyeseyee:

State v. Entrekin, 98 Haw. 221, 47 P.3d 336

Nee AE iuncascacieceaseeeseeecees

State v. Humphreys, 70 S.W.2d 752

eS Ss

State v. Lerette, 858 S.W.2d 816 (Mo. 1993)....

State v. Ravotto, 169 N.J. 227, 777 A.2d 301

Fak vinveedenevoeverseevs

State v. Taylor, 12 Conn. App. 427, 531 A.2d 157

os sens eesaccvcsessancccveces

State v. Woolery, 116 Idaho 368, 775 P.2d 1210

Ne. ak. acnsieceensensercene

Tipton v. Commonwealth, 18 Va.App. 370,

444 S.E.2d 1, 10 Va. Law Rep. 1352

sei ckscucvercvecessesccs coc

17

15

17

FEDERAL STATUTES

ERE ESE a er a 18

MINNESOTA STATUTES

OE RE ce 11,19

RULES

Fed. Crim.P. 41(c)(2)(B), 41(d)(3)(A)

ae 17, 18, 19

AAT EE Crim. F. BG (ZO0G)......c.cvcccccccccccccccccese 17

OTHER

3W LaFave, Search and Seizure Section 5.3(c) 168-

ee 5

Vi

OPINIONS, ORDERS BELOW

Respondent agrees with, and adopts by

reference, the documents attached to the Petition,

Appendix 1-76.

JURISDICTION

Respondent agrees with the jurisdictional

statement as contained in the Petition.

Statutory and constitutional provisions

involved

A. Amendment Four, 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.

B. Minn. Stat. § 609.21, Criminal Vehicular

Homicide and Injury Subdivision 1. Criminal

Vehicular Homicide or Operation; crime

defined

A person is guilty of criminal vehicular homicide or

operation and may be sentence as provided in

subdivision la, if the person causes injury to or the

death of another as a result of operating a motor

vehicle:

(1) in a grossly negligent manner;

(2) in a negligent manner while under the

influence of:

(1) alcohol;

(11) a controlled substance; or

(i11) any combination of those elements;

(3) while having an alcohol concentration of 0.08 or

more; |

(4) while having an alcohol concentration of

0.08 or more, as measured within two

hours of the time of driving;

(5) in a negligent manner while knowingly under

the influence of a hazardous substance;

(6) in a negligent manner while any amount of a

controlled substance listed in schedule I or II, or

its metabolite, other than marijuana or

Tetrahydrocannabinols, is present in the

person's body;

(7) where the driver who causes the accident leaves

the scene of the accident in violation of section

169.09, subdivision 1 or 6; or

(8) where the driver had actual knowledge that a

peace officer had previously issued a citation or

warning that the motor vehicle was defectively

maintained, the driver had actual knowledge

that remedial action was not taken, the driver

had reason to know that the defect created a

present danger to others, and the injury or

death was caused by the defective maintenance.

(emphasis added)

STATEMENT OF FACTS

The Statement of Facts of Janet Sue Shriner

("Petitioner") set forth at page 3 of the Petition for a

Writ of Certiorari accurately reflects the facts of this

case with the following exceptions. The time between

the police being dispatched as a result of the accident

caused by Petitioner and the time her blood was

drawn at the hospital was 45 minutes, not

“approximately 30 minutes". Contrary to Petitioner's

statement, Officer Yakovlev did not refer to the

5

a

procedure of obtaining a test outside the Implied

Consent law as a “Schmerber draw" nor did he testify

that he had no concern Petitioner might "slip under

the legal limit at any moment." Both of those

statements were contained in questions posed to the

officer on cross-examination by Petitioner's counsel.

Officer Yakovlev agreed with the questions posed by

defense counsel, but the words in the quotations were

those of the attorney, not of the officer.

ARGUMENT

This court should deny Certiorari because: (a)

the Minnesota Supreme Court properly interpreted

and applied the “exigency” requirement of Schmerber

uv. California! governing blood withdrawals in

criminal vehicular operation cases; (b) the vast

majority of the courts have uniformly construed

Schmerber in precisely the same way for the past 42

years; and (c) the Minnesota Supreme Court's

interpretation of Schmerber is_ preferable to

Petitioner's interpretation.

In Schmerber v. California, this Court held

that the Fourth Amendment permits blood to be

taken incident to a lawful arrest, without a warrant

and over the arrestee's objection, if three

requirements are met: (1) the arresting officers have

a "clear indication" that the evidence they seek will

be found in the arrestee's blood; (2) exigent

circumstances exist; and (3) the method used to take

the blood sample is “a reasonable one" and

"performed in a reasonable manner". *

In the present case, Petitioner does not take

| 384 U.S. 757, 86 S.Ct. 1826: 16 L.Ed.2d 908 (1966).

2 384 LIS. 757, 770-71, 86 S.Ct. 1826: 16 L.Ed.2d 908 (1966)

5

3

issue with whether or not there is a clear indication

that the evidence they seek will be in the arrestee's

blood or that the procedures employed to draw the

blood were reasonable. Petitioner's only contention is

that investigating officers lacked sufficient exigency

to negate the need for a search warrant.

Under Schmerber, the test for exigent

circumstances is an objective one: whether "the

officer. . . 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.”’3 In Shriner, the Minnesota Supreme Court

interpreted Schmerber as holding that 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 a

criminal vehicular homicide or operation.‘

Petitioner asserts that the Minnesota Supreme

Court misinterpreted Schmerber and decided Shriner

in a manner that was inconsistent with other

decisions of this court (Petition p. 7-17) and that this

misinterpretation conflicts with the decisions of other

states (Petition p. 17-19). The State disagrees.

3 Schmerber, 384 U.S. at 770; Preston v. United States, 376 US.

364, 367, 11 L.Ed.2d 77784 S.Ct. 881, 883 (1964).

* State v. Shriner, 751 N.W.2d 538, 549-50 (Minn. 2008).

4

I. Schmerber is properly understood as

holding that the fact of continuous,

rapid blood alcohol dissipation alone

satisfies the "exigency" requirement

for a warranticss blood draw in

criminal vehicular operation cases.

The heart of the "exigency" requirement in

Schmerber is that it is reasonable not to require

police to seek out a warrant and risk further delay in

securing chemical evidence of intoxication from a

lawfully arrested drunk driving suspect beyond the

delay that inheres in the process of obtaining the

blood ‘sample.' This exigency requirement is largely

subsumed in a single paragraph of Schmerber:

The officer in the present case, however,

might reasonably have believed that he was

confronted with an emergency, in which the

delay necessary to obtain a warrant, under

the circumstances, threatened "the

destruction of evidence,"... We are told that

the percentage of alcohol in the blood begins

to diminish shortly after drinking stops, as

the body functions to eliminate it from the

system. Particularly in a case such as this,

where time had to be taken to bring the

accused to a hospital and to investigate the

scene of the accident, there was no time to

seek out a magistrate and secure a warrant.

Given these special facts, we conclude that

the attempt to secure evidence of blood-

> Probable cause to arrest may substitute for the predicate fact

of a lawful arrest under some interpretations of Schmerber. See,

3W LaFave, Search and Seizure, Sec. 5.4(b) at 193-201 (4th

Edition 2004)

S

alcohol content in this case was an

appropriate incident to petitioner's arrest.®

(Internal citation omitted)

It is from this language that later courts have

properly interpreted Schmerber for the proposition

that continuous, rapid blood alcohol dissipation alone

satisfies the "exigency" requirement for a warrantless

blood draw in criminal vehicular operation cases.’

Petitioner reads Schmerber as requiring more

than the rapid dissipation of alcohol in the blood

stream as a basis for meeting the exigency

requirement in criminal vehicular operation cases.

Petitioner asserts that in Schmerber the

hospitalization of the accused and the lapse of two

hours until arrest, were additional requirements

before exigent circumstances exist for a warrantless

blood draw. (Petition p. 11)

As the Minnesota Supreme Court concluded,

however, Petitioner reads Schmerber too narrowly.

There is no discussion in Schmerber either of the time

necessary to secure a warrant or of when police

obtained probable cause and could have applied for a

warrant. If anything, the record in Schmerber

suggests that the officer who arrived at the accident

scene immediately acquired probable cause upon

observing "symptoms of drunkenness" in the

accused.8 Nor did this Court in Schmerber examine

the nature of blood alcohol evidence short of

© Schmerber, 384 US. at 770-71.

” Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900

(1973) this court expanded the rationale in the holding of

Schmerber to also include cases that were pre arrest, but with

probable cause.

8 Schmerber, 384 U.S. at 769.

6

identifying its evanescence. Accordingly, in

Schmerber, the facts that an accident occurred and

that the accused was taken to the hospital say

nothing about the exigency for making the

warrantless search at the time it was actually made.

In light of the foregoing considerations,

Schmerber is best understood - on its facts -- in the

manner expressed by the Minnesota Supreme Court:

"(t]he 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

deferdant committed criminal vehicular

homicide or operation."

Petitioner further argues that this Court's

analysis in Welsh v. Wisconsin,!® is determinative of

its intent regarding the concept of exigent

circumstances in the Schmerber decision.!! In Welsh,

this Court held that, without sufficient exigent

circumstances, law enforcement officers may not

make a warrantless nighttime entry into the home of

an individual to arrest him for a civil, non-jailable

traffic offense, i.e. a first time offense of driving while

> For example, there is no explanation why the warrant process

could not have been started shortly after the officer acquired

probable cause at the accident scene. Nor is there any

explanation, in terms of the rate of blood alcohoi dissipation, as

to why it would have been too late to seek out a warrant two

hours after the accident when the accused was arrested at the

hospital, or at any other point in time.

'0 466 US. 740: 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)

1! .

Petition at 15.

intoxicated under Wisconsin State law.!2 However, it

is important to note that Welsh did not dispute the

evanescent character of evidence of intoxication.

Rather, this Court invalidated the arrest because "an

important factor to be considered when determining

whether any exigency exists is the gravity of the

underlying offense for which the arrest is being

made.!3 Instead, this Court in Welsh acknowledged

"destruction of evidence" as an emergency condition"

justifying a warrantless search, under Schmerber.

Petitioner in this case was arrested for and charged

Prior decisions of this court, however, have

emphasized that exceptions to the warrant

requirement are "few in number and

carefully delineated," (internal citation

omitted) and that the police bear a heavy

burden when attempting to demonstrate

an urgent need that might justify

warrantless searches or arrests. Indeed,

the court has recognized only a few such

emergency conditions, see, e.g., United

States v. Santana, 427 US. 38, 42-43

(1976)(hot pursuit of a fleeing felon);

Warden v. Hayden, 387 U.S. 294, 298-99

(1967)(same); Schmerber v. California,

384 U.S. 757, 770-71 (1966)(destruction

of evidence); Michigan v. Tyler, 436 U.S.

499, 509 (1978)(ongoing fire), and has

actually applied only the “hot pursuit"

doctrine to arrests in the home, see

Santana, supra.'4 (emphasis added)

42

~ Id. at 753-54.

'S Td at page 753

14

Id. at 149-50.

with the criminal offense of criminal vehicular

operation resulting in bodily harm. Clearly this is a

jailable offense and therefore Welsh is inapplicable to

the analysis of this court's intent in Schmerber.

II. The vast majority of the courts, state,

and federal, have uniformly construed

Schmerber in precisely the same way

as the Minnesota Supreme Court did in

Shriner for the past 42 years.

More specific to the issue of this Court's intent

in Schmerber, is Cupp v. Murphy'* which was

decided in 1973. In Cupp v. Murphy, this Court

expanded the first factor in Schmerber to include the

existence of probable cause, not just a lawful arrest.!’

Relying on Chimel v. California,'® this Court stated

that under the circumstances of Cupp v. Murphy, the

police were justified in subjecting Murphy to a limited

search necessary to preserve the highly evanescent

evidence (blood) found under his fingernails, citing

Schmerber v. California. This Court said, “[o]n the

facts of this case considering the existence of probable

cause, the very limited intrusion undertaken incident

to the station house detention, and the ready

destructibility of the evidence, we cannot say that the

search violated the Fourth and _ Fourteenth

Amendments.”!9 There was no discussion of passage

of time beyond the necessity of obtaining the evidence

'S Td. at page 753.

' 412 US. 291: 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).

'7 Td. at 296.

18 395 US. 752; 89 S.Ct. 2034; 23 L.Ed.2d 685 (1969)

(recognizing an exception to the warrant requirement when a

search is incident to a valid arrest.

19 Id.

before Murphy had the opportunity to destroy it.

In 1983 this Court decided South Dakota v.

Neville,2° and reversed the Supreme Court of South

Dakota which had affirmed the suppression of

Neville's refusal to take a blood test on the grounds

that allowing the refusal into evidence at trial

violated Neville's federal and state privilege against

self incrimination. In Neville, this Court also

discussed its holding in Schmerber that the forced

withdrawal of blood under the circumstances did not

violate the Fourth Amendment, noting “Schmerber

also rejected arguments that the coerced blood test

violated the right to due process, the right to counsel,

and the prohibition against unreasonable searches

and seizures.”2! This Court went on to state

"“Schmerber, then, clearly allows the state to force a

person suspected of driving while intoxicated to

submit to a blood alcohol test."2?

In 1985 Winston v. Lee*3 was decided. In

Winston, this Court applied the Schmerber balancing

test to the state's request for compelled surgical

intrusion into a suspect's body for evidence. In that

situation, citing Schmerber, this Court concluded that

the procedure sought was an example of the "more

substantial intrusion" cautioned against in

Schmerber. In Winston, this Court discussed the

reasonableness prong of the Schmerber balancing test

and differentiated between blood tests and the

proposed surgical intrusion. This Court stated,

"Schmerber recognized society's judgment that blood

20 459 U.S. 553: 103 S.Ct. 916: 74 L.Ed.2d 748 (1983).

™ Schmerber, footnote 8, at 559.

22 Neville at 756.

?3 470 US. 753: 105 S.Ct. 1611: 84 L.Ed.2d 662 (1985).

10

tests do not constitute an unduly extensive imposition

on an individual's personal privacy and _ bodily

integrity."24 In discussing the balancing of the

community's interest against an individual's interest,

this Court further stated:

"Weighed against these individual

interests is the community's interest in

fairly and accurately determining guilt or

innocence. This interest is of course of

great importance. We noted in Schmerber

that a blood test is "a highly effective

means of determining the degree to which

a person is under the influence of alcohol."

... Moreover, there was "a clear indication

that in fact [desired] evidence [would] be

found" if the blood test were undertaken....

Especially given the difficulty of proving

drunkenness by any other means, these

considerations showed that results of the

blood test were of vital importance if the

state were to enforce its drunken driving

laws. In Schmerber, we concluded that this

state interest was sufficient to justify the

intrusion, and the compelled blood test

was "reasonable" for Fourth Amendment

purposes.*> (Internal citations omitted)

Skinner v. Ratlway Labor Exec. Assoc.2® was

decided in 1989. In Skinner, the Court upheld against

a Fourth Amendment attack a federal railroad

administration regulation that in relevant part

required toxicological testing of the blood of all

id Winston at 762.

25 Td. at 762-63.

26 489 US. 602: 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

11

railroad employees in certain train accidents. As part

of its rational for concluding that such blood samples

may be taken without warrants, the court cited

Schmerber for the propositions that blood samples

"must be obtained as soon as possible" and that "the

delay necessary to procure a warrant nevertheless

may result in the destruction of valuable evidence."2?

Although the blood testing of railroad

employees discussed in Skinner is not aimed at

procuring evidence for criminal prosecutions, the

bodily intrusion at stake — the privacy interest — is

no different than in the drunk driving context.

Indeed, the public safety interest at stake is virtually

identical in both the railroad situation addressed in

Skinner and the context of drunk driving: to remove

the intoxicated operators from the stream of

transportation. In _ short, if the "exigency"

requirement of Schmerber is unclear, Skinner goes far

in clarifying it: exigency based solely on the fact of

continuous, rapid blood alcohol dissipation.

Finally, in Jllinots v. McArthur?®, decided in

2001, this Court discussed exceptions to the warrant

requirement. McArthur had been restrained outside

of his house while officers went to obtain a warrant to

search for drugs inside his home. In McArthur, the

Court found that a warrantless seizure of the suspect

was not per se unreasonable since it involved exigent

circumstances and the restraint issued was tailored,

avoiding significant intrusion into McArthur's home.

"We nonetheless have made it clear that

there are exceptions to the warrant

id Skinner, Id. at 623.

28 531 U.S. 326: 121 S.Ct. 946: 148 L.Ed.2d 838 (2001).

12

requirement. When faced with special law

enforcement needs, diminished expectations

of privacy, minimal intrusions, or the like,

the court has found the certain general, or

individual, circumstances may render a

warrantless search or seizure reasonable...

In the circumstances of the case before us,

we cannot say that the warrantless seizure

was per se unreasonable. It involves a

plausible claim of specially pressing or

urgent law enforcement need, 1.e., "exigent

circumstances." CF., e.g., United States v.

Place, 462 U.S. 696, 701 (“the exigencies of

the circumstances may permit temporary

seizure without warrant”); Warden, MD.

Penitentiary v. Hayden, 387 U.S. 294, 298-

99, 18 L.Ed.2d 782, 87 S.Ct. 1642

(1967)(warrantless search for suspect and

weapons reasonable where delay posed

grave danger); Schmerber v. California,

384 U.S. 757, 770-71, 16 L.Ed.2d 908, 86

S.Ct. 1826 (1966)(warrantless blood test

for alcohol reasonable where delay

would have led to loss of evidence).29

(emphasis added)

Citing Schmerber, Justice Souter in his

concurring opinion in McArthur stated that the

"probability of destruction in anticipation of a

warrant exemplifies the kind of present risk that

undergirds the accepted exigent circumstances

exception to the general warrant requirement."

29 McArthur, 531 US. at 330-31.

30 McArthur, 531 US. at 337.

13

IV. Many other courts have implicitly or

explicitly held that the dissipation of

alcohol always creates sufficient

exigency to dispense with the

warrant requirement.

Petitioner argues that more states have held

that evanescent nature of alcohol does not create an

exigency than states which that have held it does.?!

However, Petitioner neglects to lst many

jurisdictions that agree with Minnesota and

misstates the holding of the Supreme Court of Alaska

in State v. Blank.32 Blank involved a _ vehicular

homicide case where a preliminary breath test result

was admitted at trial. The Alaska Supreme Court

discussed the three Schmerber requirements of

probable cause, exigent circumstances, and

reasonable’ procedures.°3 The Supreme Court

remanded to the trial court to determine whether

exigent circumstances justified the trooper requesting

the breath test, as that issue had not previously been

reached. The Alaska Supreme Court did not rule that

the evanescent nature of the alcohol was not a single

factor exigent circumstance. On remand, the trial

court did determine that exigent circumstances were

present, but that issue was not subsequently

appealed.4

Other courts that have held in a similar

manner as Minnesota include the following: United

States vu. Reid, 929 F.2d 990, 993 (4th Cir.

1991)(categorically rejecting defendant's argument

3! Petition page 18.

32 90 p.3d 156 (AL 2004).

73 54 at 161.

34 State v. Blank, 142 P.3d 1210 (AL Ct. App. 2006).

14

that the state could have obtained a warrant prior to

breath test because "compliance with [federal

telephonic warrant] rules takes time. Time is what it

lacking in these’ circumstances."); Ry. Labor

Executives’ Ass'n v. Burnley, 839 F.2d 575, 583 (9th

Cir. 1988)("We can agree that the exigencies of

testing for the presence of alcohol and drugs in blood,

urine or breath require prompt action which

precludes obtaining a warrant.") (citations omitted),

rev'd on other grounds, People v. Shepherd, 906 P.2d

607, 610 (Colo. 1995)(presuming exigency and

allowing warrantless search "because alcohol

dissipates quickly in the blood"); State v. Ravotto, 169

N.J. 227, 777 A.2d 301, 315 (N.J. 1991)(finding that

"consistent with Schmerber and our analogous case

law, the dissipating nature of the alcohol content in

defendant's blood presented an _ exigency’ that

required prompt action by the police. Under those

conditions, a warrantless search was _ justified.");

State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399,

400 (Wis. 1993); cert. denied, 510 U.S. 836, 114 S.Ct.

112; 126 L.Ed.2d 78 (1993)("The dissipation of alcohol

from a person's blood stream constitutes a sufficient

exigency to justify a warrantless blood draw."); State

v. Cocio, 147 Ariz. 277, 709 P.2d 1336, 1345 (Ariz.

1985)(evanescent nature of alcohol in defendant's

blood stream is exigent circumstance since alcohol in

a suspect's blood is certain to disappear); People uv.

Ritchie, 130 Cal. App. 3d 455, 458, 181 Cal. Rptr. 773

(Cal. App. 1982)("In intoxication by alcohol, the

special factor that the percentage of alcohol in the

blood begins to diminish shortly after its consumption

triggers the warrantless intrusion into the body.");

State v. Taylor, 12 Conn. App. 427, 531 A.2d 157, 160-

61 (Conn. App. 1987)(exigent circumstances

consisting of dissipation of blood alcohol content

1S

justified breathalyzer tests); State v. Entrekin, 98

Haw. 221, 47 P.3d 336, 348 (Haw. 2002)(exigent

circumstances clearly present because alcohol

dissipates from bloodstream); State v. Woolery, 116

Idaho 368, 775 P.2d 1210, 1212 (Idaho 1989)("The

destruction of the evidence by metabolism in the

blood provides an inherent exigency which justifies

the warrantless search."); DeVaney v. State, 288

N.E.2d 732, 735, 259 Ind. 483 (Ind. 1972)(exigent

circumstances present since the evidence of blood

alcohol content "might soon disappear during the

time necessary to obtain the warrant"); State uv.

Baker, 502 A.2d 489, 493 (Me. 1985)("The bodily

process that eliminates alcohol also provides exigent

circumstances obviating the need for a warrant prior

to administering a blood test."); State uv. Lerette, 858

S.W.2d 816, 819 (Mo. 1993)(exigent circumstances

exist because "the percentage of alcohol in the

bloodstream diminishes with time" and "the delay

caused by having to obtain a warrant might result in

the destruction of evidence"); Commonwealth v.

Anderl, 329 Pa. Super. 69, 477 A.2d 1356, 1364 (Pa.

Super. 1984)("The warrantless seizure of the

appellant's alcohol-laden breath is valid either as a

search incident to arrest or a search necessitated by

exigent circumstances; 1.e., the evanescent nature of

the alcohol in appellee's [sic] bloodstream."); State v.

Humphreys, 70 S.W.2d 752, 760-61 (Tenn. Crim. App.

2001)("Based upon the fact that evidence of blood

alcohol content begins to diminish shortly after

drinking stops, a compulsory breath or blood test,

taken with or without the consent of the donor, falls

within the exigent circumstances exception to the

warrant requirement."); Aliff v. State, 627 S.W.2d

166, 170 (Tex. Crim. App. 1982)(because “alcohol in

blood is quickly consumed and the evidence would be

16

lost forever," the warrantless taking of blood dees not

violate the Fourth Amendment); Tipton ov.

Commonwealth, 18 Va.App. 370, 444 S.E.2d 1, 3, 10

Va. Law Rep. 1352 (Va. App. 1994)("Exigent

circumstances existed due to the dissipating nature of

alcohol in the blood."); Bennett v. Coffman, 178 W. Va.

500, 361 S.E.2d 465, 469 (W. Va. 1987) overruled on

other grounds by State v. Chase Securities, Inc., 188

W. Va. 356, 424 S.E.2d 591 (W. Va. 1992)

(Warrantless administration of blood-alcohol test did

not violate plaintiffs constitutional rights based on

"destruction of evidence" exception to the warrant

requirement).

Petitioner suggests that the availability of

telephonic warrants under the Minnesota Rules of

Criminal Procedure*5 has altered the analysis of

exigency set forth in Schmerber and continues to

argue that it is a simple, very timely, procedure.

However, the Minnesota Supreme Court considered

that argument and rejected it. Minnesota's Rules of

Criminal Procedure which allow for telephonic

warrants are very similar to that under the Federal

Rules of Criminal Procedure.3’ Both require

procedures which are quite time consuming.

At least one federal court has expressly

addressed the issue of a warrantless blood draw for

evidence of alcohol intoxication and rejected the

argument that a telephonic scarch warrant could

have been obtained. In United States v. Reid,*% the

defendants were separately convicted of drunk

35 Minn.R.Crim.P. 36 (2006).

3© Shriner, 751 N.W.2d at 549.

37 Red.Crim.P. 41(d)(3)(A) and 41(e)(3)(2006).

38 gog p.2d 990. 991-92 (4th Cir. 1991)

ey

driving offenses under 36 CFR § 4.23 that did not

involve accidents or injuries. In each case,

breathalyzer testing followed within an hour after the

arrest.39 The defendants challenged the admission of

the test results under the Fourth Amendment,

arguing that police should have sought telephonic

warrants under Federal Rule of Criminal Procedure

41(c)(2).49 In rejecting this argument the federal court

explained that the availability of telephonic warrants

"does not alter the exigency of the situation:"

Rule 41(c)(2)(B) requires that the police

prepare a document known as "a duplicate

original warrant" before calling’ the

magistrate judge. Rule 41(c)(2)(B) also

requires that the police must read the

document verbatim to the magistrate

judge. The magistrate judge must enter

verbatim what is read to him onto a

document known as the original warrant.

Rule 41(c)(2)(D) requires the magistrate

judge to place under oath the police officer

requesting the warrant and anyone whose

testimony forms a basis of the application.

Further, Rule 41(c)(2)(D) requires the

magistrate judge to record the

conversation if a voice recording device is

available; otherwise, the magistrate judge

must arrange for a stenographic or long-

ae

© The version of the Federal Rules of Criminal Procedure in

effect in 1991. Further, although there is a recognized difference

between a breath test and a blood draw, this difference is not

relevant to the federal court's rationale concerning the

availability of telephonic warrants and the analysis of exigent

circumstances.

18

hand verbatim record to be made.

Obviously compliance with these rules

takes time.‘4!

The federal court in Reid concluded that "time

is of the essence when testing for alcohol in the blood

stream."42 The Minnesota Supreme Court in Shriner

agreed.

III. The Minnesota Supreme Court's

interpretation of Schmerber is

preferable to Petitioner's

interpretation.

Under Minn. Stat. § 609.21, subd. 1(4) the

evidentiary value of chemical evidence of intoxication

depends on both the timing of the sample and the

actual test result.43

Asking whether, in a particular case, a police

officer might be able to obtain a search warrant for a

blood sample without extended delay misses the

mark. In light of the interests at stake, officers should

not have to speculate about whether too much time

has elapsed between the alleged drunken driving and

the acquisition of probable cause to obviate the need

for a warrant, or about whether a warrant may be

obtained quickly enough to preserve the value of the

chemical evidence being sought. Requiring law

enforcement to consider factors other than probable

cause, and reasonableness of testing procedures in

criminal vehicular homicide and operation cases

” Reid, 929 F.2d at 993 (emphasis in original).

*? Reid, 929 F.2d at 993.

4 , er

* If an individual has an alcohol concentration of 0.08 or more,

as measured within two hours of the time of driving, the test

result is admissible without expert testimony.

19

places an unreasonable burden on them. An officer

may be familiar with the area in which the accident

occurred, but an officer has no control over how long

it would take to travel to a judge or the judge's

availability. An officer may also not know the time of

a suspect's last drink, the amount of alcohol he

consumed, or the rate at which the suspect will

metabolize alcohol. Finally, an officer cannot know

how long it will take to obtain a blood sample once

the suspect is brought to the hospital. An officer

would then be called upon to 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.

To construe the "exigency" rule of Schmerber as

based solely on the fact of blood alcohol dissipation is

analogous to construing the "automobile exception" to

the warrant requirement as based upon _ the

"exigency" created by the fact that a motor vehicle is

mobile.*4 It is a rule of "exigency" which can be easily

understood and readily applied by well intentioned

and reasonably competent police officers. The

dissipation of alcohol from the blood stream is a

constant that starts as soon as an individual stops

drinking. None of the other factors involved in a

"totality of the circumstances" analysis, argued for by

Petitioner, affects the fact that alcohol is being

metabolized by a suspect's body each and every

minute post-accident. It is a single factor exigency.

Schmerber has been the law for 42 years, and with

only a couple exceptions, every court that has

addressed the question has construed the "exigency"

+ See, California v. Carney, 471 U.S. 386, 392-93: 85 L.Ed.2d

406; 105 S.Ct. 2066, 2068 (1985).

20

requirement of Schmerber in the same manner as the

Minnesota Supreme Court. Petitioner provides no

persuasive reason to re-visit this interpretation 1n her

case.

CONCLUSION

For the reasons _ stated, Respondent

respectfully asks this Court to deny the Petition for a

Writ of Certiorari.

Dated: December 18, 2008.

Respectfully submitted,

JAMES C. BACKSTROM

Dakota County Attorney

Counsel of Record

By: Phillip D. Prokopowicz,

Chief Deputy

Dakota County Attorney's Office

Dakota County Judicial Center

1560 Highway 55

Hastings, MN 55033

Telephone: (651) 438-4438