STATE OF NEW JERSEY v. JOSE MAJAO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE MAJAO,

Defendant-Appellant.

________________________________________________________________

June 26, 2015

Submitted October 15, 2014 Decided

Before Judges Lihotz and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-057.

The Gorman Law Firm, attorneys for appellant (Scott A. Gorman, of counsel and on the briefs).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his second conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, arguing that the laboratory certificate revealing his blood alcohol content (BAC) was 0.119% should have been suppressed because (1) there was no testimony from a phlebotomist that the sample was drawn in a medically acceptable manner, and (2) the State did not get a search warrant before obtaining the blood sample. He also contends there was insufficient evidence to establish his guilt. We affirm.

The details of the scene of defendant's one-car accident were provided by Trooper R. Roman of the New Jersey State Police. Trooper Roman responded to the scene at approximately 5:35 a.m. Defendant's car had flipped over the guardrail and was approximately fifteen feet down an embankment along Route 80. First aid workers were already on the scene, attending to defendant. Defendant, who was not wearing a seat belt, was lying on the roof of the overturned vehicle. Trooper Roman testified defendant was unresponsive to efforts to get his attention.

Trooper Roman was able to have a conversation with defendant in the ambulance as he was being taken to Morristown Memorial Hospital. Defendant told him he lost control of his vehicle. Trooper Roman detected the presence of alcohol on defendant's breath and further noticed his eyes were bloodshot and watery.

Trooper Roman remained with defendant at the emergency room. He asked a phlebotomist to draw samples of defendant's blood and provided the phlebotomist with vials from an alcohol kit furnished by the State Police. Trooper Roman observed the phlebotomist "wipe[] the area where he was going to draw the blood from, and from there he provided two site [sic], he was able to get two samples." The phlebotomist gave the samples to Trooper Roman, who packaged them and brought them directly to the station. He logged the samples into evidence, where they were stored in a refrigerated temporary evidence locker before being transported to the laboratory for analysis.

Michael Baklarz, a forensic scientist with the New Jersey State Police, testified regarding his analysis of the blood samples taken from defendant. He stated the BAC from the samples was 0.119% plus or minus 0.003%. Baklarz signed the certified laboratory report.

Gary Lage, Ph.D., testified as an expert in toxicology on behalf of defendant. He stated properly handling blood samples, particularly in the period from the time the blood is drawn until it is refrigerated, is crucial. He explained that during that time glucose in the blood could potentially convert into alcohol, resulting in higher BAC readings. However, turning to the facts of this case, Lage testified he believed "the readings conducted by the laboratory [were] accurate."

Defendant was convicted in municipal court of DWI and sentenced as follows: two days incarceration, which could be served in Intoxicated Driver Resource Center; thirty days community service; two-years loss of license; one-year ignition interlock device; and appropriate fines and penalties. Following a trial de novo, the Law Division judge found defendant guilty of DWI and imposed the same sentence.

In his appeal, defendant presents the following arguments

POINT I

THE LABORATORY CERTIFICATE IS NOT ADMIS[S]IBLE BECAUSE THE RECORD IS DEVOID OF PROOF THAT THE BLOOD SAMPLES WERE DRAWN IN A MEDICALLY ACCEPTABLE MANNER, AS THE PHLEBOTOMIST WHO DREW THE BLOOD SAMPLES DID NOT TESTIFY.

POINT II

THE LABORATORY CERTIFICATE MUST BE SUPPRESSED BECAUSE THE BLOOD DRAW VIOLATED DEFENDANT'S CONSTITUTIONAL PROTECTION AGAINST UNREASONABLE SEARCHES BECAUSE THE STATE OBTAINED SAMPLES OF DEFENDANT'S BLOOD WITHOUT FIRST OBTAINING DEFENDANT'S CONSENT OR A SEARCH WARRANT AND NO EXCEPTION TO THE GENERAL WARRANT REQUIREMENT APPLIED.

POINT III

THE EVIDENCE ADDUCED AT TRIAL IS INADEQUATE TO ESTABLISH, BEYOND A REASONABLE DOUBT, THAT DEFENDANT WAS INTOXICATED AT THE TIME THAT HE OPERATED A MOTOR VEHICLE.

We are unpersuaded by these arguments.

We first address defendant's contention that a search warrant was required before the blood sample was drawn. At the time in question, New Jersey law permitted the police to obtain a blood sample without first obtaining a warrant, so long as they had probable cause to believe the driver was intoxicated and the sample was taken "in a medically acceptable manner at a hospital or other suitable health care facility," State v. Dyal, 97 N.J. 229, 238 (1984) (citing Schmerber v. California, 384 U.S. 757, 771-72, 86 S. Ct. 1826, 1836, 16 L. Ed. 2d 908, 920 (1966)), and without the use of excessive force, State v. Ravotto, 169 N.J. 227, 236 (2001). Noting the rapid rate at which the body eliminates alcohol, our Supreme Court held that "[i]nvestigating police, while coping with an emergency, should not be obliged to obtain a search warrant before seeking an involuntary blood test of a suspected drunk driver." Dyal, supra, 97 N.J. at 239-40 (citing Schmerber, supra, 384 U.S. at 770-71, 86 S. Ct. at 1836, 16 L. Ed. 2d at 919-20).

In Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), the United State Supreme Court revisited the warrant issue and rejected the notion that the rapid dissipation of alcohol constituted an exigency per se that permitted officers to dispense with obtaining a warrant in a routine DWI case. Id. at ____, 133 S. Ct. at 1556, 185 L. Ed. 2d at 702. The Court held, "consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances." Ibid. Significantly, the Court accepted as "true" the immutable fact that the alcohol level in one's bloodstream begins to dissipate from the time "the alcohol is fully absorbed and continues to decline until the alcohol is eliminated." Id. at ___, 133 S. Ct. at 1560, 185 L. Ed. 2d at 706. This fact remained "essential" to the totality of the circumstances analysis because, when time was spent investigating an accident scene and transporting an injured suspect to the hospital, "further delay in order to secure a warrant . . . would have threatened the destruction of evidence." Id. at ___, 133 S. Ct. at 1561, 185 L. Ed. 2d at 707 (discussing holding in Schmerber, supra).

In State v. Adkins, ___ N.J. ___ (2015), our Supreme Court held that the McNeely totality of the circumstances analysis would be given pipeline retroactivity to all blood draws from suspected drunk drivers. Id. at 26. The Court held further

[L]aw enforcement should be permitted on remand in these pipeline cases to present to the court their basis for believing that exigency was present in the facts surrounding the evidence's potential dissipation and police response under the circumstances to the events involved in the arrest. Further, the exigency in these circumstances should be assessed in a manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion. But, in reexamining pipeline cases when police may have believed that they did not have to evaluate whether a warrant could be obtained, based on prior guidance from our Court that did not dwell on such an obligation, we direct reviewing courts to focus on the objective exigency of the circumstances that the officer faced in the situation.

[Id. at 32.]

McNeely described the special facts considered in the Schmerber Court's analysis which, the Court agreed, were sufficient to support a warrantless blood test

[T]he petitioner had suffered injuries in an automobile accident and was taken to the hospital. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. . . . [W]e concluded that the warrantless blood test "in the present case" was nonetheless permissible because 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.'"

In support of that conclusion, we observed that evidence could have been lost 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." We added that "[p]articularly 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 found that it was appropriate for the police to act without a warrant.

[McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1559-60, 185 L. Ed. 2d at 705-06 (internal citations omitted).]

The "special facts" that warranted a warrantless blood sample in Schmerber were present in this case, supporting the conclusion that there was an "objective exigency." State v. Adkins, supra, slip op at 32. This was not a routine DWI stop. There was a one-car accident, in which defendant's vehicle flipped over and landed fifteen feet down an embankment. First aid personnel responded to the scene, where defendant was unresponsive. After he was extracted from the interior roof of his car, defendant was transported to the hospital. The facts of the accident, the emergency response and the time spent taking defendant to the hospital all contributed to a delay before the blood sample could be taken. We conclude "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.'" McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1560, 185 L. Ed. 2d at 706 (internal citations omitted). These circumstances presented an exigency that excused the officer from obtaining a warrant before requesting that a blood sample be drawn.

The arguments raised in Point I and III lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding the argument in Point I.

It is well-established that a blood sample must "be taken in a medically acceptable manner at a hospital or other suitable health care facility" for a resulting BAC reading to be admissible. Dyal, supra, 97 N.J. at 238. (1984) (citing Schmerber, supra, 384 U.S. at 771-72, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920.). The blood sample was drawn by a phlebotomist at a hospital. Trooper Roman testified as to the procedure he observed and was subject to cross-examination. There is no evidence that any force was employed to extract the sample or that defendant objected in any way to its withdrawal. See State v. Ravotto, 169 N.J. 227, 231 (2001). We, therefore, reject defendant's argument that the State failed to show that the sample was taken in a medically acceptable manner and could only do so by presenting the testimony of the phlebotomist.

Affirmed.