State v. JOSHUA

NOT FOR PUBLICATION WITHOUT THE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-03119-14T2

State of New Jersey,

Plaintiff-Respondent,

v.

JOSHUA D. MALMGREN,

Defendant-Appellant.

__________________________

December 15, 2016

 

Submitted November 15, 2016 Decided

Before Judges Koblitz and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 12-11-0748.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joshua D. Malmgren pled guilty to two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), admitting that he killed two teenaged girls when he swerved onto the shoulder of the road while driving under the influence of alcohol and prescription drugs. He also admitted to using his cell phone and being distracted by a large sign by the side of the road. At the time, defendant had his broken left arm in a cast. The judge sentenced defendant to the maximum aggregate sentence permissible under the plea agreement: eighteen years with an eighty-five percent parole disqualifier subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Prior to pleading guilty, defendant moved to suppress the results of his blood alcohol test. This issue was preserved on appeal pursuant to Rule 3:5-7(d). Because the issue was decided prior to our Supreme Court's decision in State v. Adkins, 221 N.J. 300 (2015), we now remand for further review to determine whether sufficient exigency existed to draw defendant's blood absent a warrant.

Middle Township Police Officer Brian Murphy was the only witness for the State at the motion to suppress. He responded shortly after 9 p.m. to the scene of the accident. He saw emergency and police vehicles as well as a large crowd forming. The scene was "very chaotic." He spoke to defendant, who was seated under a large tree, hugging his knees and crying. Defendant's eyes were watery and bloodshot and he smelled of alcohol. Defendant was unable to perform a field sobriety test and complained of pain in his right hand, ankles and femur. His right hand was broken: he told the police he punched his car after the accident.

Officer Murphy transported defendant to the Cape Regional Medical Center to attend to his injuries and obtain "a legal blood kit." At the hospital, defendant signed a form that did not inform him he had the right to refuse consent to the blood draw. The blood test revealed a blood alcohol content of .183, more than twice the legal limit. SeeN.J.S.A.39:4-50. The laboratory report revealed the presence of Clonazepam and Tramadol, prescription medications that defendant later admitted he was warned not to use with alcohol.

The motion judge accurately characterizing the law in New Jersey at that time as "permit[ting] the police to obtain a blood sample without first obtaining a warrant so long as they had probable cause to believe that the driver was intoxicated," denied defendant's motion to suppress the blood report. The judge also opined that the "testimony did not provide this [c]ourt with a sufficient basis to determine whether an exigency occurred."

Defendant raises the following issues on appeal

POINT I: THE TRIAL COURT JUDGE ERRED IN FAILING TO APPLY THE HOLDING IN STATE v. ADKINS TO THE CASE AT BAR. AS THERE WAS NO EXIGENCY PROVEN, THE RESULTS OF THE DEFENDANT'S BLOOD TEST SHOULD BE SUPRESSED.

POINT II: THE DEFENDANT'S SENTENCE IS EXCESSIVE.

After defendant's motion to suppress was heard, our Supreme Court decided Adkins, supra, 221 N.J. at 317, which applied The United States Supreme Court decision in Missouri v. McNeely, U.S. , 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), retroactively to all cases in the pipeline. This is one such case. McNeely determined that before blood can be constitutionally drawn from a suspect in a drunk-driving investigation a warrant must be obtained, unless an exigency existed under the totality of the circumstances. Id. at , 133 S. Ct. at 1568, 185 L. Ed. 2d at 714-15. Our Supreme Court remanded

to allow the State and defendant the opportunity to re-present their respective positions on exigency in a hearing on defendant's motion to suppress the admissibility of the blood test results . . . . [I]n that hearing, potential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. . . . [W]e direct the reviewing court to focus on the objective exigency of the circumstances faced by the officers.

 
[Adkins, supra, 221 N.J. at 303.]

Similarly, we remand for a hearing at which further testimony may be elicited by either party.

We do not address defendant's excessive sentence argument, which he may raise if relevant on appeal after remand. We do not retain jurisdiction.