STATE OF NEW JERSEY v. SPENCER HOLDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03037-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SPENCER HOLDEN,

Defendant-Appellant.

_____________________________

November 2, 2016

Argued September 27, 2016 Decided

Before Judges Reisner and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2014-042.

Randolph H. Wolf argued the cause for appellant (Mr. Wolf, attorney; Mr. Wolf and Katherine A. North, on the briefs).

Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, on the briefs).

PER CURIAM

Defendant Spencer Holden appeals from a February 10, 2015 Law Division order, finding him guilty of driving while intoxicated, N.J.S.A. 39:4-50, based on a blood test which showed he had a blood alcohol content of .095. The appeal focuses on the denial of defendant's suppression motion. We affirm, substantially for the reasons set forth in Judge Ramona A. Santiago's thorough written opinion issued with the order. We add the following comments.

At about 5:30 p.m., during rush hour on Interstate Route 280, defendant's car rear-ended another vehicle, which in turn was pushed into the car ahead of it. State Trooper Kim arrived shortly after the accident and handled all law enforcement-related activities at the scene. With no back-up officers, he directed traffic around the accident, oversaw the removal of the damaged cars from the roadway, interviewed all the witnesses, ensured that the injured persons at the scene received medical attention, and then followed the ambulance carrying defendant to the hospital. A sample of defendant's blood was drawn at the hospital at 6:40 p.m., on the basis of defendant's signature on a written consent form.

On January 27, 2014, the defense filed a suppression motion. All parties appeared on June 12, 2014, the scheduled trial date. Contrary to Rule 7:5-2(b), which requires that "[a]ll motions to suppress shall be heard before the start of the trial," the municipal judge indicated that he would decide the suppression motion after hearing all of the trial evidence.1 The attorneys neither consented nor objected.

The State relied on defendant's having signed a consent form for the drawing of his blood, although the prosecutor elicited from Trooper Kim the circumstances surrounding the accident scene, as described above. Defense counsel did not cross-examine the Trooper on the issue of exigency. Instead, defense counsel asked very few questions of the Trooper, and those were geared toward the merits of the DWI charge and particularly the Trooper's observations of defendant after the accident. The municipal judge held that defendant had voluntarily consented to the blood draw and did not address the issue of exigency.

Defendant appealed the municipal court conviction to the Law Division. Before the Law Division, the State abandoned the consent issue and argued exigent circumstances. In a written opinion, the Law Division judge found that defendant's consent to draw blood was invalid, because the State did not prove that defendant knew he had the right to refuse consent. However, finding the totality of the circumstances to be similar to those in State v. Jones, 437 N.J. Super. 68 (App. Div. 2014), the judge found that the warrantless blood draw was justified by exigent circumstances. This appeal followed.

Due to our concern over the impropriety of the municipal court's proceeding and because the State changed its theory between the municipal trial and the Law Division appeal, we gave the parties the opportunity to brief the issue of whether a remand might be appropriate for an additional suppression hearing. However, in their supplemental briefs, both parties urged that a remand was unnecessary, and that a remand would not elicit any additional relevant evidence on the suppression issue.

Indeed, the defense brief advised us that "defense counsel was afforded the opportunity to present its case in full during the trial on the merits and was given wide latitude during cross-examination. . . . [B]y arguing against remand on appeal, both the State and the defense have made clear that they stipulate to the trial court's use of the evidence adduced at the trial on the merits during the suppression hearing."

Because both counsel essentially concede that the record made in the municipal court was as helpful as it was going to get for their respective sides, we have determined not to order a remand on the suppression issue.

After reviewing the record in light of the applicable law, we find that Judge Santiago's factual findings are supported by sufficient credible evidence. See Jones, supra, 437 N.J. Super. at 74. We also agree that, under the totality of the circumstances, there was sufficient objective proof of exigent circumstances to justify drawing defendant's blood without a warrant. See State v. Adkins, 221 N.J. 300, 317 (2015); Jones, supra, 437 N.J. Super. at 80-81. In this case, the sole investigating officer had no time to apply for a telephonic warrant while handling the accident scene during rush hour traffic. And, given the time that had already elapsed, it would not have been reasonable for him to spend additional time at the hospital, waiting for a warrant while the alcohol in defendant's bloodstream dissipated. See Adkins, supra, 221 N.J. at 317; Jones, supra, 437 N.J. Super. at 80-81.

Affirmed.

1 Apparently, the municipal judge routinely conducted hearings contrary to Rule 7:5-2, by declining to hear suppression motions before holding the trial on the merits. "[A] suppression hearing and a trial are 'designed to determine discrete issues and are governed by different rules.' The discrete nature of the proceedings influences the presentation of the evidence. . . . [A] suppression hearing may include evidence inadmissible in a trial on the merits, such as hearsay." State v. Gibson, 219 N.J. 227, 237 (2014) (citation omitted). Absent all counsel's advance consent, the two proceedings may not be combined. See id. at 248-49 (addressing incorporation of suppression hearing evidence into the merits trial).