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NOT FOR PUBLICATION WITHOUT THE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.

___________________________

August 29, 2016

Argued May 16, 2016 Decided

Before Judges Simonelli and Gooden Brown.

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

Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).

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

PER CURIAM

By leave granted, the State appeals from the Law Division's December 8, 2015 order granting defendant Shayna Zalcberg's motion to suppress the results of a blood alcohol test derived from blood evidence drawn from her without a search warrant. The State argues that the facts established exigent circumstances justifying the warrantless seizure of defendant's blood. We disagree and affirm.

On July 27, 2011, defendant was a driver in a fatal automobile accident. She was subsequently charged in a Monmouth County indictment with second-degree vehicular homicide, N.J.S.A. 2C:11-5; 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). On January 22, 2013, defendant filed a pre-trial motion to suppress the results of her warrantless blood draw by hospital personnel at the request of a Freehold Township police officer. Following a suppression hearing conducted on April 30 and July 12, 2013,1 the trial judge granted defendant's motion. Although the judge found that there was probable cause to obtain the blood sample, relying on Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), he concluded that the State had failed to prove exigency beyond the dissipation of alcohol in the blood to justify the warrantless blood draw.

By leave granted, the State appealed and we reversed, adopting our holding in State v. Adkins, 433 N.J. Super. 479, 493 (App. Div. 2013), rev'd and remanded, 221 N.J. 300 (2015) (hereinafter Adkins I) that McNeely was not retroactive. State v. Zalcberg, No. A-0449-13 (App. Div. Feb. 28, 2014). Defendant filed a motion for leave to appeal to the New Jersey Supreme Court and, while defendant's motion was pending, our Supreme Court reversed Adkins I and held that McNeely would be given pipeline retroactivity to all blood draws from suspected drunk drivers. State v. Adkins, 221 N.J. 300 (2015) (hereinafter Adkins II). On July 30, 2015, our Supreme Court granted defendant's motion for leave to appeal and summarily remanded to the trial court "for a new suppression hearing in order that exigency may be assessed on a newly developed and more full record in light of this Court's holding in [Adkins II]."

On remand, the parties declined the opportunity to supplement the record and relied on the evidentiary record established at the earlier suppression hearing, from which we discern the following facts.2 At 8:28 p.m. on July 27, 2011, Freehold Township Police Officer Richard Hudak was dispatched to the scene of a serious automobile accident on Route 522 in Freehold Township, near the intersection with Route 9. That area of Route 522 is a rural two-lane roadway that is flat and straight, with double yellow lines separating the lanes. Hudak arrived at the scene at approximately 8:35 p.m. and observed Patrolmen Braxton and Mandela as well as Sergeant Hall checking on the injured. Braxton, who was the first to arrive on scene along with Mandela, called for EMT and fire department personnel. Hall requested that the "SCART"3 team and Monmouth County Prosecutor's Office Detective Kerecman4 be dispatched.

The two motor vehicles involved in the collision were a Honda Pilot, which was facing eastbound, and a Honda Accord, which was facing westbound. The Pilot had front end damage. The Accord had significant damage to the passenger side of the vehicle and was located on a dirt berm against a tree on the south side of the roadway. Hudak observed three occupants trapped inside the Accord, all with obvious signs of injury. The driver, later identified as defendant, was unconscious but breathing and appeared limp. The front seat passenger was in and out of consciousness and the rear seat passenger had labored breathing.5 Hudak could not open any of the vehicle doors and Braxton tried to talk to the occupants, but received no responses.

The driver of the Pilot, Donald Farrell, was outside of his vehicle, while his mother was seated in the front passenger seat of the Pilot. Hudak asked them what had occurred and was told by Farrell that he was driving eastbound on Route 522 when he observed the Accord driving westbound towards him, swerving back and forth across the lanes, as if the Accord was sliding on ice, even though the roadway was dry. According to Farrell, as the vehicles approached each other, the Accord crossed the lanes and hit his vehicle. After providing this account, at 9:18 p.m., Farrell and his mother were transported to Freehold Township Police Headquarters by Braxton, where Farrell provided a written statement to Detective Smith and Officer Gallo that was consistent with the account provided at the scene.6 After dropping Farrell and his mother off, Braxton immediately returned to the scene.

When fire department and first aid personnel arrived at the scene, the fire department personnel used a "jaws of life" device to remove the top of the passenger compartment of the Accord so that the three occupants could be extricated and brought to waiting ambulances where they received first aid, pending the arrival of three medivac helicopters. The medivac helicopters departed the scene at 9:25 p.m. and transported the three occupants of the Accord to Jersey Shore Medical Center.

When Kerecman arrived at the scene at 9:05 p.m., the scene was already secure. Officers were positioned at key locations on and around Route 522, so that the area of the collision was closed to through traffic. At approximately 9:25 p.m., a paramedic who had treated defendant before she was transported by the medivac helicopter advised Kerecman that defendant, while unconscious and on a "back board," had a strong odor of alcohol emanating from her. In addition, Hudak was told by an individual administering first aid that defendant smelled of alcohol, and Hudak observed a small airplane-size bottle of an alcoholic beverage on the center console of the Accord after the top was removed. By approximately 9:45 p.m., Kerecman also observed the bottle of alcohol in the Accord.

Soon after Kerecman's arrival, four members of the SCART team arrived7 and the investigation of the accident commenced, with auxiliary lighting provided by fire department personnel. The investigation involved analyzing the location of the vehicles and examining evidence at the scene, including tire scuff marks and other roadway markings. Hudak observed "yaw marks"8 on the roadway in the direction in which the two vehicles had stopped, originating in the westbound lane of Route 522 and ending in the eastbound lane.

Kerecman suspected that defendant's use of alcohol caused the collision. He conferred with Hudak, Hall and members of the SCART team and they collectively concluded that there was probable cause that defendant was driving while under the influence of alcohol. According to Kerecman, they decided to obtain a blood sample from defendant because her injuries rendered her unable to perform field sobriety tests or submit to a breath-analysis test. The decision to obtain a blood sample was based on the bottle found in defendant's vehicle and the odor of alcohol emanating from her, Farrell's verbal description of the collision, the manner in which the accident appeared to have occurred, the seriousness of the potential charges, concern regarding the natural dissipation of alcohol in the blood, and the fact that blood samples were routinely taken.

At 10:36 p.m., Hall9 directed Braxton to go to Jersey Shore Medical Center to obtain defendant's blood sample. Although Kerecman believed that Braxton was dispatched immediately after the decision to obtain a blood sample was made, he testified that he could not recall exactly when the decision was made. Braxton arrived at Jersey Shore Medical Center at 10:53 p.m. Upon inquiring about the location of the occupants of the Accord, he was directed to the operating room, where he waited until he was given access to a nurse. At his request and upon completing the required form, the nurse obtained a blood sample from defendant and delivered it to Braxton at 12:05 a.m. on July 28, 2011.

At the time in question, taking blood samples in fatal accidents was the practice in the Freehold Township Police Department. In fact, Farrell's blood sample was taken with his consent. Hudak testified that there was no discussion among those present at the scene about obtaining a search warrant, telephonic or otherwise. Neither Braxton nor Kerecman was ever trained on obtaining telephonic search warrants, and Kerecman did not believe that a search warrant was required. According to Kerecman, in his twenty years as a law enforcement officer, he had conducted blood draws from individuals involved in accidents over one hundred times and had never obtained a search warrant.

The on-call Monmouth County Assistant Prosecutor was never contacted for legal advice. Monmouth County First Assistant Prosecutor Rick Incremona, a veteran with the Monmouth County Prosecutor's Office, testified that telephonic warrants were available to law enforcement officers in Monmouth County on the evening in question and there was nothing that precluded the officers from attempting to obtain one. According to Incremona, when he began his career with the office in 1987 or 1988, he handled two separate cases involving telephonic search warrants that he described as a relatively new process under the Rules of Court. In those instances, the searches were deemed invalid because the issuing judges failed to maintain the contemporaneous notes required under the rule. As a result, the Prosecutor's Office abandoned future efforts to obtain telephonic search warrants and the practice not to seek telephonic search warrants as permitted under the rule developed.

In a December 8, 2015 written opinion, Judge Francis J. Vernoia found all five of the State's witnesses to be credible based on "the demeanor" of each witness and the content of their testimony. The judge explained that "[e]ach witness testified in a forthright and earnest manner, which conveyed a commitment to relating the information requested in a careful and truthful manner." The judge made detailed factual findings and concluded that the State established by a preponderance of the evidence that, by 9:20 p.m. on July 27, 2011, there was probable cause to obtain a sample of defendant's blood based on Farrell's verbal description of the accident, the odor of alcohol emanating from defendant, and the alcoholic beverage observed in defendant's vehicle.

However, the judge determined that the State "failed to prove by a preponderance of the evidence that a constitutionally satisfactory exigency existed which, when viewed from the objective exigency of the circumstances faced by the officers in the situation, justified the warrantless search at issue here." In his analysis, the judge reviewed Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); McNeely, supra; Adkins II, supra,; and State v. Jones, 437 N.J. Super. 68 (App. Div. 2014), aff'd after remand, 441 N.J. Super. 317 (App. Div. 2015). Applying these authorities, the judge concluded that no exigent circumstances, beyond the dissipation of alcohol from the blood, were established to justify the warrantless blood draw.

In rejecting the State's argument that the "objective exigency of the circumstances" faced by the officers justified dispensing with the warrant requirement, the judge reasoned

There were many officers on the scene, as well as Fire Department and First Aid personnel. The accident scene was a static one which had been closed off. While there was an ongoing investigation of the collision, there was no evidence presented that there was any shortage of personnel or any other matter related to the investigation which interfered in[,] with, or in any manner delayed, the officers' ability to request, or consider requesting, the defendant's blood sample with or without a warrant.

To the contrary, Braxton was free to drive Farrell to headquarters and return to the scene. Detective Smith and Officer Gallo were located at police headquarters for the purpose of obtaining a written statement from Farrell. . . .

[T]he State has not presented evidence that the delay in requesting the defendant's blood was the result of attention diverted by the investigation or because individuals were injured or hospitalized. None of the officers testified that the nature or complexity of the investigation resulted in the delay in requesting the blood sample. In contrast, Kerecman testified that the only exigency present was the dissipation of alcohol in defendant's blood. The State simply offered no evidence as to why the officers, when faced with that singular exigency, waited more than one hour after having probable cause to dispatch Braxton to the hospital. . . .

If, as the State contends, there was a concern about the dissipation of alcohol in defendant's blood, the officers would have moved quickly to obtain the defendant's blood sample, with or without a warrant . . . .

It is the officers' unexplained and inexplicable delay, and not any "perceived dissipation," which created the purported exigency at the time the blood sample was taken here.

To hold otherwise would require that this court ignore that dissipation of alcohol in the blood does not constitute a per se exigency permitting a warrantless blood draw. . . .

Similarly, the State cannot logically claim it was unable to "reasonably obtain a warrant" when its failure to obtain the warrant is the result of its long-standing practice of ignoring the availability of telephonic search warrants under the Rules of Court.

The judge again granted defendant's motion to suppress the blood evidence and this appeal followed. On appeal, the State contends that the facts established objective exigency justifying the warrantless seizure of defendant's blood and the judge erred in ruling otherwise.

Our role is limited in reviewing a trial court's decision on a motion to suppress. State v. Robinson, 200 N.J. 1, 15 (2009). We ordinarily accord deference to the trial judge's factual findings, so long as they are "supported by sufficient credible evidence in the record," State v. Elders, 192 N.J. 224, 243 (2007), or where those findings "are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). However, we owe no deference to the trial court's legal conclusions or interpretation of the legal consequences flowing from established facts and our review in that regard is de novo. State v. Watts, 223 N.J. 503, 516 (2015); State v. Vargas, 213 N.J. 301, 327 (2013).

We have considered the State's contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Vernoia in his comprehensive and well-reasoned opinion. We add the following brief comments.

The Court in McNeely held that the natural metabolization of alcohol does not create a per se exigency for all drunk-driving cases, and that "exigency in this context must be determined case by case based on the totality of the circumstances." Id. at ___, 133 S. Ct. at 1556, 185 L. Ed. 2d at 702. "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." Id. at ___, 133 S. Ct. at 1561, 185 L. Ed. 2d at 707. In Adkins II, our Supreme Court provided explicit guidance in reviewing and reexamining pipeline cases. Acknowledging that police may have believed that they did not have to evaluate whether a warrant could be obtained based on the Court's prior guidance that did not dwell on that obligation, the Court directed "reviewing courts to focus on the objective exigency of the circumstances that the officer faced in the situation." Adkins II, supra, 221 N.J. at 317.

Here, while this case cannot be characterized as "a routine DWI case," and arguably can be analogized to Jones, supra, 437 N.J. Super. at 78, the State failed to present evidence of exigency beyond the natural dissipation of alcohol. In Jones, a warrantless blood draw conducted about one hour and fifteen minutes after the crash and immediately after the responding officer detected defendant's slurred speech and admission to imbibing was upheld. Id. at 72. The facts in Jones supporting the warrantless blood draw included a serious car accident, injuries requiring hospitalization, a concentration of disabled cars and emergency vehicles on a busy highway and an hours-long police investigation. Id. at 78-79.

In this case, responding officers had probable cause to believe that defendant operated her vehicle while under the influence of alcohol approximately one hour after the crash, yet waited an additional hour before dispatching an officer to the hospital to obtain defendant's blood sample without a warrant. The State presented no evidence that the delay was the result of attention diverted to the investigation, the hospitalization of the injured, or the nature or complexity of the investigation. On the contrary, the only exigency presented was the dissipation of alcohol in defendant's blood. On this record, the judge correctly concluded that the State failed to meet its burden to establish exigent circumstances to justify the warrantless blood draw.

1 The State rested at the conclusion of the April 30, 2013 hearing after presenting four witnesses. After receiving additional submissions from the State and hearing argument on May 31, 2013, the judge granted the State's application to reopen the hearing to elicit additional testimonial evidence.

2 The State presented five witnesses at the suppression hearing: Freehold Township Police Officers Richard Hudak and Troy Braxton; Monmouth County Prosecutor's Office First Assistant Prosecutor Rick Incremona and Detective Eric Kerecman; and Dr. John Brick, who was qualified as an expert in the areas of "physiological, pharmacological behavior effects of alcohol and measurement of alcohol in human beings." Defendant did not present any witnesses.

3 "SCART" refers to the Serious Collision Analysis Response Team, which is a group of law enforcement officers trained to assist in the reconstruction of serious automobile accidents.

4 Kerecman, who was on call, was not a member of the SCART team but investigated fatal accidents as part of his duties in the Monmouth County Prosecutor's Office's Major Crimes Unit.

5 The rear seat passenger later succumbed to his injuries.

6 Farrell's written statement at police headquarters was typed by a secretary employed by the department, beginning at 10:20 p.m. and ending at 10:41 p.m.

7 All law enforcement personnel at the scene were in possession of cell phones.

8 A "yaw mark" is a mark left on a roadway by a tire which is sliding on the roadway, while rotating.

9 Since Hall did not testify at the suppression hearing, the judge was unable to ascertain the basis for Hall's request or the rationale for directing the seizure without first obtaining a search warrant.