State of Minnesota, Respondent, vs. Matthew John Tichy, Appellant.

State of Minnesota, Respondent, vs. Matthew John Tichy, Appellant. A05-1365, Court of Appeals Unpublished, July 25, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1365

 

State of Minnesota,

Respondent,

 

vs.

 

Matthew John Tichy,

Appellant.

 

Filed July 25, 2006

Affirmed

Kalitowski, Judge

 

Washington County District Court

File No. K5-04-4389

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Doug Johnson, Washington County Attorney, Michael Hutchinson, Assistant County Attorney, Washington County Government Center, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082-0006 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Matthew John Tichy appeals from his conviction of criminal vehicular operation resulting in great bodily harm in violation of Minn. Stat. § 609.21, subd. 2(4) (2002).  Appellant challenges the district court's refusal to suppress evidence of his blood test, arguing that (1) exigent circumstances did not exist to justify a warrantless blood draw; and (2) the blood draw by a police officer at the scene of the accident did not meet Fourth Amendment standards of reasonableness.  We affirm.

D E C I S I O N

 

            "When reviewing pretrial orders on motions to suppress evidence," an appellate court "may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

I.

            The administration of a blood test "plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment."  Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966).  A blood test is constitutional where (1) the police were justified in requiring the criminal suspect to submit to the blood test; and (2) "the means and procedures employed in taking [the suspect's] blood respected relevant Fourth Amendment standards of reasonableness."  Id. at 768, 86 S. Ct. at 1834. 

            The Fourth Amendment requires that the police refrain from performing a warrantless removal of blood unless the police have probable cause and exigent circumstances are present.  State v. Aguirre, 295 N.W.2d 79, 81 (Minn. 1980).  Exigent circumstances are present in cases involving the "imminent destruction of evanescent evidence."  State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996).  Shortly after an individual stops drinking, the percentage of alcohol in the blood begins to diminish as bodily functions eliminate it from the system.  Schmerber, 384 U.S. at 770, 86 S. Ct. at 1836.  Thus, a warrant may not be necessary for a blood draw depending on the amount of time that has elapsed since the accident and the difficulty in quickly securing a warrant.  Id. at 770-71, 86 S. Ct. at 1836.

            In Schmerber, the United States Supreme Court determined that exigent circumstances existed where an officer ordered a blood draw two hours after a car accident.  Id. at 769-71, 86 S. Ct. at 1835-36.  The Court explained that "there was no time to seek out a magistrate and secure a warrant" because "time had to be taken to bring the accused to a hospital and to investigate the scene of the accident."  Id. at 770-71, 86 S. Ct. at 1836.  And in State v. Speak, 339 N.W.2d 741, 742-43, 745 (Minn. 1983), the Minnesota Supreme Court determined that exigent circumstances existed where police administered a blood-alcohol breath test one hour and ten minutes after police were called to the scene of the accident.

            Here, a police officer drew appellant's blood at 3:06 a.m., approximately 30 minutes after the car crash.  Appellant argues that the district court erred in determining that exigent circumstances were present to justify a warrantless blood draw.  We disagree.

            The accident occurred early in the morning when locating a judge is more difficult.  Furthermore, because the crash was severe, the officers were faced with a strong possibility that appellant would require medical attention.  And the record indicates that the hospital was 20 to 30 minutes away from the crash scene.  Thus, assuming that appellant's blood was drawn immediately after he arrived at the hospital, at least an hour would have elapsed since the crash.  Because appellant's preliminary breath test indicated that appellant's blood-alcohol concentration was .09, this delay could have allowed the alcohol concentration in appellant's blood to dissipate enough to jeopardize its probative value.  See Minn. Stat. § 609.21, subd. 2(4) (2002) (requiring a blood-alcohol concentration of .10 or more).  Based on the totality of these circumstances, we conclude that the district court did not err in determining that exigent circumstances justified the warrantless blood draw.

II.

 

            The Fourth Amendment also requires that the test chosen to measure a defendant's blood-alcohol level is reasonable.  Schmerber, 384 U.S. at 771, 86 S. Ct. at 1836.  "Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol."  Id.  Further, blood tests are "commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain."  Id.

            In Schmerber, the United States Supreme Court determined that the blood test was performed in a reasonable manner because a physician took the defendant's blood in a hospital environment according to accepted medical practices.  Id.  The Court indicated that a blood test may be unreasonable if the search were "made by other than medical personnel or in other than a medical environment."  Id. at 771-72, 86 S. Ct. at 1836.  The Court explained that searches under those conditions might "invite an unjustified element of personal risk of infection and pain."  Id. at 772, 86 S. Ct. at 1836.

            Here, a police officer drew a blood sample from appellant at the scene of the accident.  Appellant argues that the blood draw was unreasonable because the officer is not a physician and he did not draw the blood in a sterile environment.  But the record indicates that the officer has been a certified paramedic since January 1997.  And at the time of the incident, the officer had drawn blood for approximately 25 DWI-related cases.  Thus, the officer had the appropriate skill and training to draw appellant's blood.  Furthermore, there is no evidence that the officer did not use the proper equipment.  Therefore, appellant was not subjected to an unjustified risk of infection or pain.  We conclude that the blood draw met the Fourth Amendment's standards of reasonableness.

            Because exigent circumstances justified the warrantless blood test and the police administered the blood test in a reasonable manner, we conclude that the district court did not err in admitting the blood test results into evidence.

            Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.