STATE OF NEW JERSEY v. SHAYNA ZALCBERG

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

SHAYNA ZALCBERG,

Defendant-Respondent.

___________________________

February 28, 2014

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-03-0440.

Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief).

James Fagen argued the cause for respondent (Helmer, Conley & Kasselman, P.A. and James Fagen, attorneys; Mr. Fagen and Patricia B. Quelch, of counsel and on the brief).

PER CURIAM

We granted the State's motion for leave to appeal from an order suppressing the results of a blood test obtained without a warrant. We reverse and remand for further proceedings.

A Monmouth County grand jury indicted defendant Shayna Zalcberg charging her with second-degree vehicular homicide, N.J.S.A. 2C:11-5a, two counts of third-degree assault by auto, N.J.S.A. 2C:12-1c(2), and fourth-degree assault by auto, N.J.S.A. 2C:12-1c(2). Defendant was one of the drivers involved in a fatal automobile accident. At approximately 8:30 p.m. on July 27, 2011, police were dispatched to the scene of the accident and discovered that defendant and her two passengers were injured and trapped inside the vehicle. Defendant was unconscious. One of the passengers eventually died as a result of the injuries.

Members of the fire department extricated defendant and her passengers from the vehicle using the jaws of life, paramedics treated them in an ambulance, and Medevac helicopters transported them to a hospital. The police officers interviewed Donald Farrell, the driver of the other vehicle involved in the collision. Farrell stated that he was driving in the eastbound lanes of the road when he observed defendant's vehicle traveling toward him in the westbound lanes, swerving across the road as if sliding on ice, even though the road was dry. Defendant's vehicle crossed the yellow lines into oncoming traffic and collided with Farrell's vehicle.

An individual who administered first aid and a paramedic both reported an odor of alcohol emanating from defendant. Defendant was unconscious the entire time she was being treated at the scene. After the fire department removed the top of defendant's vehicle, Officer Richard Hudak and Detective Eric Kerecman both observed an airplane-size bottle of alcoholic beverage in the vehicle.

Based on these facts, the officers at the scene collectively concluded there was probable cause that defendant drove the car involved in the accident while under the influence of alcohol. Detective Kerecman testified at the suppression hearing that they decided to obtain a blood sample based on the odor of alcohol emanating from defendant, the bottle found in the vehicle, the severity of the accident, Farrell's statements about defendant swerving, the dynamics of the crash, and roadway evidence.

Because defendant's injuries rendered her unable to perform any field sobriety tests or submit to a breath-analysis test, the officers decided to obtain a sample of her blood to determine what her blood alcohol content was at the time of the accident. On this issue, Detective Kerecman testified that the dissipation of alcohol in defendant's blood created an exigency to secure the blood sample as quickly as possible. He also believed that under these circumstances a search warrant was not required.

Defendant was transported from the scene of the accident to a hospital to receive treatment for her injuries. At approximately midnight, a nurse obtained a sample of defendant's blood upon Officer Troy Braxton's request.

Defendant filed a motion to suppress the blood test results. Before the trial court heard oral argument on the motion, the United States Supreme Court decided Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). In McNeely, the Court held that dissipation of alcohol in the blood alone is insufficient to constitute an exigent circumstance under the exigency exception to the Fourth Amendment warrant requirement. Id. at ___, 133 S. Ct. at 1557-58, 185 L. Ed. 2d at 703-04.

Here, the motion judge held that there was probable cause to obtain the blood sample, but that, under McNeely, "the State has failed to prove by a preponderance of the evidence that a constitutional[ly] satisfactory exigency existed which justified the warrantless search at issue here." Therefore, the judge granted defendant's motion to suppress.

While this appeal was pending, we decided State v. Adkins, ___ N.J. Super. ___, ___ (App. Div. 2013) (slip op. at 7), in which we held that McNeely should not be applied retroactively under State retroactivity law because McNeely "dramatically changed the legal landscape." Under facts remarkably similar to the salient facts we confront here, citing State v. Harris, 211 N.J. 566, 590 (2012), we also concluded in Adkins that the exclusionary rule did not apply because "there was no mistake by the police, good faith or otherwise. At the time of the search, their conduct was lawful under well-established case law in this State." Adkins, supra, slip op. at 22.

We adopt the well-reasoned and comprehensive analysis expressed by our colleague Judge Reisner in Adkins. The police here relied on then-binding State precedent that held that the dissipation of alcohol in the blood constituted a per se exigency when there was probable cause of intoxication. The motion judge found that the officers had probable cause to believe that defendant was intoxicated. Accordingly, we reverse the order suppressing the blood test results and remand for additional proceedings.

Reversed and remanded.