NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-08-0734.
Ronald Susswein, Assistant Attorney General, and Jenny M. Hsu, Deputy Attorney General, argued the cause for appellant (A-5748-12)/respondent (A-5749-12) (John J. Hoffman, Acting Attorney General, attorney; Mr. Susswein and Ms. Hsu, of counsel and on the brief).
Richard F. Klineburger, III, argued the cause for respondent (A-5748-12)/appellant (A-5749-12) (Klineburger and Nussey, attorneys; Mr. Klineburger, on the brief).
Before Judges Reisner, Alvarez and Ostrer.
By leave granted, the State appeals from paragraph one of a June 7, 2013 order, suppressing the results of a warrantless blood test, and defendant appeals from paragraph two of the same order, denying his speedy trial motion. Because we conclude that application of the exclusionary rule is not required in the unusual circumstances of this case, we reverse on the State's appeal. We affirm on defendant's appeal.
The suppression issue is novel and arises from the following scenario. On December 16, 2010, defendant was involved in a one-car accident in which his vehicle struck a utility pole and his two passengers were injured. After defendant failed the roadside sobriety tests, the West Deptford police arrested him at about 2:30 a.m., on suspicion of driving while intoxicated (DWI). They transported defendant to police headquarters, where they read him his Miranda rights and he invoked his right to counsel. The police later transported defendant to a local hospital. At 4:16 a.m., hospital personnel drew a blood sample at the request of the police. The requesting police officer, defendant, and a hospital nurse each signed a Certificate of Request to Withdraw a Specimen, although defendant signed the form two minutes after the blood was drawn. See N.J.S.A. 2A:62A-11.
At the time of the accident in 2010, New Jersey law permitted 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. That principle, derived from Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), was based on the presumed exigency created by the dissipation of alcohol levels in the bloodstream, and was clearly stated in opinions of our Supreme Court. For example, in State v. Dyal, 97 N.J. 229 (1984), the Court observed: "A drunken driver arrested by police with probable cause to believe he is intoxicated has no federal constitutional right to prevent the involuntary taking of a blood sample. Of course, the sample should be taken in a medically acceptable manner at a hospital or other suitable health care facility." Id. at 238 (citing Schmerber, supra, 384 U.S. at 771-72, 86 S.Ct. at 1836, 16 L.Ed.2d at 920). The issue in Dyal was whether the police could obtain the results of hospital blood tests drawn for purposes of medical treatment; however, part of the Court's reasoning was that the police had the right to obtain a blood sample from the driver. Dyal, supra, 97 N.J. at 231, 238-39.
Several subsequent Appellate Division decisions likewise read Schmerber as holding that a warrant was not required. See, e.g., State v. Burns, 159 N.J.Super. 539, 544 (App. Div. 1978) ("[C]onsent is not required to the taking of a blood sample, but the taking of such sample must be done in a medically acceptable manner and environment and without force or violence or the threat of same."); State v. Woomer, 196 N.J.Super. 583, 586 (App. Div. 1984) ("[A] blood sample may be taken involuntarily [from a suspected drunk driver] and no consent is required.").
In State v. Ravotto, 169 N.J. 227, 231-33 (2001), the Court held that the police used excessive force in obtaining a blood sample from a drunk driving suspect who was terrified of needles. However, the Court reaffirmed that the police did not need a warrant to obtain the blood test:
Our holding is not to be understood as suggesting that the police had to acquire a warrant before obtaining a blood sample from defendant or that they acted in an unreasonable manner in seeking treatment for him at the hospital. Because defendant's car was found overturned and his behavior demonstrated obvious signs of intoxication, probable cause existed for the police to seek evidence of defendant's blood alcohol content level. Moreover, consistent with Schmerber and our analogous case law, the dissipating nature of the alcohol content in defendant's blood presented an exigency that required prompt action by the police. Under those conditions, a warrantless search was justified.
[Id. at 250 (citation omitted).]
These rulings were also reflected in Guidelines issued by the Attorney General to county and municipal prosecutors. In pertinent part, the Guidelines advised that "[a] defendant has no right to refuse to allow blood to be drawn as long as the police or law enforcement officer has probable cause to believe that the blood sample will contain evidence of alcohol and/or drugs." Attorney General Guideline[s]: Prosecution of DWI & Refusal Violations, at 9 (Jan. 24, 2005); N.J.S.A. 39:4-50.2a (requiring the Attorney General to promulgate guidelines). Consequently, when the police obtained the warrantless blood sample from Adkins, they acted pursuant to well-established legal precedent in this State.
However, years later, the United States Supreme Court clarified Schmerber -- and dramatically changed the legal landscape in New Jersey and many other states -- by holding that there was no per se rule of exigency in drunk driving cases, and that the need to obtain a search warrant before taking a blood sample was to be determined on a case by case basis. Missouri v. McNeely, __U.S. __, __, 133 S.Ct. 1552, 1563, 185 L.Ed.2d 696, 709 (2013); seeid. at n.2, 133 S.Ct. at 1558 n.2, 185 L.Ed.2d at 704 n.2. Further, under well-settled federal precedent, the Supreme Court's construction of the Fourth Amendment must be given pipeline retroactivity. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987) ("We therefore hold that a new rule for the conduct of criminal prosecutions is to ...