STATE OF NEW JERSEY v. AMANDA S. GUSRANG

NOT FOR PUBLICATION WITHOUT THE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-1640-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

AMANDA S. GUSRANG,

        Defendant-Appellant.


              Argued April 18, 2018 – Decided July 12, 2018

              Before Judges Alvarez and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Indictment
              No. 14-12-1067.

              Mark J. Molz argued the cause for appellant.

              Alexis R. Agre, Assistant Prosecutor, argued
              the cause for respondent (Scott A. Coffina,
              Burlington   County   Prosecutor,   attorney;
              Alexis R. Agre, of counsel and on the brief).

PER CURIAM

        A Law Division judge denied defendant Amanda Gusrang's motion

to suppress the results of a warrantless blood sample taken to

determine her blood alcohol content following a fatal motor vehicle
accident in which she was the responsible driver.         In a written

opinion, the judge found that exigent circumstances justified the

warrantless search, thus making the results admissible.       After the

motion was denied, defendant entered a guilty plea to the single

count of the indictment, which charged her with second-degree

vehicular homicide, 
N.J.S.A. 2C:11-5(a).        In accord with the plea

agreement, the judge sentenced defendant in the third-degree range

to three years in state prison, subject to a three-year period of

parole   ineligibility,   restitution,   and    appropriate   fines   and

penalties.     Defendant now appeals the denial of the motion to

suppress.    We affirm.

     We glean the facts from the testimony presented during the

suppression hearing.      At approximately 8:29 p.m. on December 6,

2013, during a rainy night, Pemberton Township Police Officer

Thomas Lucas was on routine patrol, following a patrol car driven

by Officer John Glass.     The officers immediately pulled over upon

seeing the headlights of stopped cars.         The roadway was bordered

by farm fields, which were very muddy from the rain.           A silver

Toyota Prius had rolled on the driver's side in a field next to

the roadway.    As they made their way to the car, the mud came up

to the officers' shins.      The only person in the vehicle was the

driver, John Anderson, who lay still and face-down in the mud.



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     Fearing that Anderson would drown, Lucas broke the rear

passenger window and lifted Glass into the car so he could attempt

to move the victim.      With the help of a bystander, Lucas was able

to push the roof of the vehicle up enough to allow Glass to get

Anderson's head out of the mud.        However, they were unable to move

Anderson    out   of   the   Prius,   as   one   of   his   arms   was    pinned

underneath.   The accident location was miles away from the nearest

hospital.

      While the officers were attempting to extricate Anderson, a

bystander cried out that there was a second vehicle down the road.

Lucas left Glass with Anderson and drove to the other car, a

Mercury Sable approximately 100 yards from the Prius.               Defendant

was standing outside the vehicle and did not appear to be seriously

injured, although she had some blood on her t-shirt.                 She told

Lucas that she was on the way home from work as a bartender at a

nearby establishment.        Lucas noticed the smell of alcohol in his

vehicle once defendant was seated in the back of his patrol car,

as he drove back to assist Glass.

     Because of the muddy conditions, efforts to remove Anderson

from the mud required several rescue and first responder teams,

an ambulance, paramedics, the Pemberton Township Fire Department,

and the Fort Dix Fire Department.          Seven out of the eight on-duty

Pemberton Township officers responded to the scene of the accident,

                                      3                                  A-1640-16T4
in addition to two off-duty officers and one Pemberton Borough

Officer.   Lucas and others described the scene as "chaotic."

     Lucas told Sergeant Michael Giebel that defendant smelled of

alcohol.   Defendant was still in the back seat of Lucas's patrol

car when Officer John Hall moved it to make room for a fire truck.

When Hall got out of the car, Giebel told him to take defendant

to the ambulance and escort her to the hospital for a blood draw.

The recommendation actually came from Officer Steven Price, the

traffic    safety   officer   Giebel   called   for   assistance    in

investigating the collision.      Price gave the instruction upon

being informed that defendant smelled of alcohol.

     Hall and defendant arrived at the hospital at 9:17 p.m.

Another officer brought a blood draw kit retrieved from the

Pemberton Township police station.     Defendant was carried into an

exam room on a stretcher.     Hall told Erin Mosely, the registered

nurse who was treating defendant, that defendant was in custody

for a DUI, and that he would ask defendant for consent to do a

blood draw.    According to Hall, defendant "began saying . . .

she's under arrest for DUI because she only had two shots . . .

something to the effect that she's only had two shots.      She said

that numerous times."

     Hall read the consent form to defendant as she was being

treated for an injury to her left arm.      Defendant then "said go

                                  4                          A-1640-16T4
ahead, something to the effect of go ahead . . . and pushed her

[right] arm out."      When Mosely finished with the hospital's

bloodwork, she drew the samples for Hall, who placed them into the

blood kit.   As soon as Mosely was available, he had her complete

the blood extraction form.

      Hall testified that he did not obtain a search warrant because

he was concerned about the length of time it would take to obtain

one, and the possibility that the alcohol in defendant's blood

would dissipate in the interim.      Hall did not get defendant's

signature on the consent form once she agreed to the blood draw

because there were at least two or three people attending to her,

and he did not want to interfere with her medical care.

      When Hall reentered defendant's room to have her the sign the

consent form, she said "I'm not signing shit."      Hall then read

defendant her Miranda1 rights before asking her the questions on

the Driving Under the Influence Questionnaire.       Defendant told

Hall that she had only consumed two shots of Jameson whiskey at

her workplace between 7:00 p.m. and 7:30 p.m., and that she had

eaten dinner at 5:30 p.m.      Defendant's blood alcohol reading,

approximately one hour after the incident, was .22 percent.



1
    Miranda v. Arizona, 
384 U.S. 436 (1966).



                                 5                           A-1640-16T4
      Hall contacted Price regarding defendant's refusal to sign

the   consent   form.    He   then       called   the   Burlington    County

Prosecutor's Office, and was instructed to obtain a taped statement

from Mosely.    This was done, but the tape was lost.        Defendant was

released to her grandfather at around 11:18 p.m. that night.

      For the judge, the key fact was the nature of the accident.

Because of the precarious way Anderson was trapped in his vehicle,

officers from multiple agencies were needed in the attempt to get

him out of the mud.     The investigation required the attention of

all the Pemberton Township police officers, leaving only one on-

duty officer available for patrol.         The investigation lasted over

four hours, and the roadway remained closed until almost 1:00 a.m.

      Defendant raises the following points on appeal:

          POINT I
          THERE WERE NO EXIGENT CIRCUMSTANCES TO JUSTIFY
          A WARRANTLESS SEARCH

          POINT IA
          MISSOURI V. MCNEELY

          POINT IB
          NEW JERSEY APPELLATE DIVISION ANALYSIS OF
          MCNEELY REQUIRES THE WARRANTLESS BLOOD DRAW
          TO BE SUPPRESSED

          POINT II
          APPELLATE DIVISION DECISION STATE V. DONNA
          JONES IS INAPPLICABLE

          POINT III
          NO EVIDENCE OF KNOWING AND VOLUNTARY CONSENT


                                     6                               A-1640-16T4
                                  I.

     On appeal, we defer to the trial court's findings of fact

where supported by "sufficient evidence in the record."          State v.

Hubbard, 
222 N.J. 249, 262 (2015) (citations omitted).           Findings

of fact are set aside only when clearly mistaken.         Id. at 262.

Our review of the trial court's legal conclusions, however, is

always plenary.     State v. Hathaway, 
222 N.J. 453, 467 (2015)

(citation omitted).

     The United States Constitution and the New Jersey State

Constitution both guarantee the right to be free from unreasonable

searches and seizures.    U.S. Const. amend. IV; N.J. Const. art.

I, ¶ 7.   The seizure of blood from a suspect is considered a search

under both constitutions.    Schmerber v. California, 
384 U.S. 757

(1966); State v. Ravotto, 
169 N.J. 227 (2001).         Consistent with

the above constitutional provisions, "police officers must obtain

a warrant from a neutral judicial officer before searching a

person's property, unless the search falls within one of the

recognized exceptions to the warrant requirement."           State v.

Diloreto, 
180 N.J. 264, 275 (2004) (citation omitted).           One such

exception is the presence of exigent circumstances.          State v.

Johnson, 
193 N.J. 528 (2008).

     In Schmerber v. California, the Supreme Court upheld a DWI

suspect's   warrantless   blood   test   where   the   officer     "might

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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.'"                 
384 U.S.  at 770 (quoting Preston v. United States, 
376 U.S. 364, 367

(1964)).   The Supreme Court later clarified that "in drunk-driving

investigations,      the    natural   dissipation   of    alcohol   in   the

bloodstream   does    not    constitute   an   exigency    in   every    case

sufficient to justify conducting a blood test without a warrant."

Missouri v. McNeely, 
569 U.S. 141, 165 (2013).

     Accordingly, the New Jersey Supreme Court has held that

"potential dissipation of the evidence may be given substantial

weight as a factor to be considered in the totality of the

circumstances."      State v. Adkins, 
221 N.J. 300, 303 (2015).            In

making that decision, the Court noted:

           We are constrained to adhere to the McNeely
           Court's         totality-of-the-circumstances
           approach notwithstanding that our case law,
           like that of many sister states, had provided
           de facto, if not de jure, support for law
           enforcement    to   believe    that   alcohol
           dissipation in and of itself supported a
           finding of exigency for a warrantless search
           of bodily fluids in suspected driving-under-
           the-influence cases.

           [Ibid.]




                                      8                             A-1640-16T4
     "Our   courts   are   tasked   with   focusing   'on   the   objective

exigency of the circumstances' that officers face in each specific,

unique instance."     State v. Zalcberg, 
232 N.J. 335, 352 (2018)

(quoting Adkins, 
221 N.J. at 317).

     Defendant argues that the judge erred in finding exigent

circumstances to justify a warrantless search, claiming that State

v. Jones, 
441 N.J. Super. 317 (App. Div. 2015) (hereafter Jones

II), aff'g State v. Jones, 
437 N.J. Super. 68 (App. Div. 2014)

(hereafter Jones I) is inapplicable.

     Jones I stated:

            The fact that the Supreme Court rejected a per
            se exigency rule in McNeely should not be
            misinterpreted   as   a   retreat   from   its
            recognition that the dissipation of alcohol
            in the blood merits considerable weight in a
            totality of the circumstances analysis. It
            must be emphasized that both the Missouri
            Supreme Court and the United States Supreme
            Court described the facts in McNeely as
            "'unquestionably a routine DWI case' in which
            no factors other than the natural dissipation
            of blood-alcohol suggested that there was
            an   emergency."   McNeely,  [569]   U.S.   at
            [147] . . . .

            [Jones I, 
437 N.J. Super. at 78.]

We went on to distinguish McNeely from the circumstances in Jones

I: "[t]here was no accident; no injured defendant who needed to

be extricated from [their] heavily damaged car; no other injured

person who had to be transported to the hospital; no concentration


                                     9                              A-1640-16T4
of disabled cars and emergency vehicles at a busy intersection;

and no police investigation beyond the DWI arrest."               Ibid.

       As the Court further clarified in Zalcberg, in each case

there must be a close analysis of the specific circumstances,

including the obligations and practical burdens the individual

accident imposes on the responding police officers.                
232 N.J. at
 351.    As in Zalcberg, here the officers' failure to apply for a

warrant was attributable to, as the judge described it, the

"complexity of the situation and the reasonable allocation of

limited police resources -- not a lack of emergent circumstances,

as argued by defendant."

       That the officer who obtained the blood sample without first

obtaining a warrant did so after waiting in the hospital for some

time for defendant to be treated does not support defendant's

position.      Applying the Zalcberg analysis to the situation, the

legitimate exigency is not undermined by this delay.

       Defendant needed treatment, a reasonable first priority.                She

herself contributed to the difficulties Hall faced.                 Instructed

to obtain a blood draw, he obtained defendant's initial consent,

and    after   he   waited   for   her    treatment   to   be   completed,     was

confronted with her change of heart.            That night, the department

and related agencies focused on the ultimately fruitless effort



                                         10                               A-1640-16T4
to remove the victim before he expired, and then to remove his

body, investigate, and clear the roadway.       Pemberton Township is

a small department, and the incident left a largely rural area

short on police coverage for hours.      Examining the totality of the

circumstances, the dissipation of alcohol in the blood created an

exigency which legally justified the warrantless search.

     The trial judge correctly focused on the "objective exigency"

of the circumstances that the officers faced here.       Zalcberg, 
232 N.J. at 352; Adkins, 
221 N.J. at 317.      He concluded that "[t]here

is no question that the responding Pemberton Township officers

were confronted with an emergency situation," explaining the many

compounding variables.      His factual findings were based upon

"sufficient credible evidence in the record" and are entitled to

deference.   Elders, 
192 N.J. at 243; Johnson, 
42 N.J. 146, 161

(1964).

                                   II.

     Defendant   contends   that    consent   cannot   operate   as     an

exception to the warrant requirement in this case.          We do not

reach that issue, as we find that the exigencies presented by this

incident on that particular night in this particular locale created

an objective exigency that rendered correct the trial judge's

decision to deny the motion to suppress.

     Affirmed.

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