Submitted April 1, 2014
Approved for Publication July 29, 2014.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-06-1643.
Warren W. Faulk, Camden County Prosecutor, attorney for appellant (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
Law Offices of Michael W. Kahn, P.C., and Brenner Brenner & Spiller, attorneys for respondent (Michael W. Kahn and Fletcher C. Duddy, on the brief).
Before Judges FISHER, ESPINOSA and KOBLITZ.
[437 N.J.Super. 69] ESPINOSA, J.A.D.
In Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), a warrantless blood test was administered to a [437 N.J.Super. 70] driver arrested for driving while intoxicated after a routine traffic stop. There being no other facts to suggest an emergency existed, the United States Supreme Court was asked to decide the broad question " whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases ." Id. at
__, 133 S.Ct. at 1556, 185 L.Ed.2d at 702 (emphasis added). Concluding that fact alone did not present a " per se exigency," the Supreme Court held, " consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances." Ibid.
Prior to the Supreme Court's decision, defendant caused a multiple vehicle accident, resulting in personal injury to herself and another that required each of them to be transported to a hospital. It took emergency personnel approximately thirty minutes to extricate the unconscious defendant from her vehicle. The police investigation of the accident scene at a heavily traveled intersection took several hours. Relying on McNeely, the trial court suppressed a blood alcohol content (BAC) reading of .345, the result of a blood test administered without a warrant. We granted leave to the State to appeal from this order and, for the reasons that follow, we reverse.
Defendant was indicted on one count of fourth-degree assault bye auto, N.J.S.A. 2C:12-1(c)(2), and was issued related summonses for reckless driving, N.J.S.A. 39:4-96, and driving while intoxicated, N.J.S.A. 39:4-50. She filed a motion to suppress the results of the blood sample.
Two witnesses testified at the suppression hearing, Officers James Watts and Anthony Sorrentino of the Cherry Hill Police Department. The facts elicited at the suppression hearing can be summarized as follows:
[437 N.J.Super. 71] It was dusk at approximately 7:00 p.m. on December 28, 2011, when a three-vehicle crash occurred at the intersection of Kings Highway, a State highway, and Church Road, a county road in Cherry Hill. Traffic at this location is heavy during rush hour conditions. Two automobiles were stopped at a red light on Kings Highway. Defendant drove her vehicle into the second car stopped at the light, propelling it into the automobile ahead of it. Defendant's vehicle continued to strike the second vehicle before " careening off" across the intersection, where it wedged up against a cemetery archway. Because the accident involved injuries, it was a " Code 2" crash in which available police units are dispatched to the scene. In addition to the eleven officers who responded, there were at least two Emergency Medical Service (EMS) vehicles and four EMS personnel, two fire trucks and an unknown number of firefighters at the accident scene.
Officer Sorrentino was one of the first officers on the scene, which he described as " very chaotic." Officers Watts and Sorrentino
described the officers' tasks at the scene. Officer Sorrentino stated,
[W]hen we first responded we had to set up traffic directions so we had to block off the vehicles that were damaged. And we had to set up a system for directing traffic around the damaged vehicles as well as the emergency vehicles. Someone had to attend to the victims in each car and other units would have attended to any witnesses or tried to locate any witnesses at the scene.
Several officers were needed to assess the traffic conditions, the occupants of the three vehicles, and the situation involving defendant's car. There was a concern that the building defendant had struck might collapse. Watts described the officers' objective as " to make sure . . . that there's nothing else going to happen to make the scene worse."
Defendant was found inside her vehicle, unconscious and bleeding from her face. The fire department and Emergency Medical Technicians (EMTs) had to extricate her from her heavily damaged car, a process that took approximately one-half hour. As defendant was being removed from the vehicle and placed in the ambulance, the EMTs told Officer Sorrentino that there was an [437 N.J.Super. 72] odor of alcohol on defendant's breath. Because defendant remained unconscious, no sobriety tests were administered at the scene. Defendant was taken to the hospital along with an occupant of one of the other cars who was also injured in the accident.
Officer Watts, a traffic safety officer, testified that his assignment is to investigate what are deemed to be potentially serious or fatal accidents. He was called to investigate the scene approximately forty-five minutes to one hour after the accident was reported, arriving after defendant had been taken to the hospital. He testified it took several hours for the investigation at the scene to be completed.
Officer Sorrentino went to the hospital to follow up on the injuries of defendant and the occupant of the other vehicle, which proved not to be serious. Once defendant regained consciousness, Officer Sorrentino asked her if she had anything to drink and she responded that she had at least one beverage. The record does not reveal for how long defendant was unconscious. Officer Sorrentino described defendant's speech as " very slurred." She was unable to answer his questions when he asked for her address or for a phone contact for a relative.
At Officer Sorrentino's request, a nurse drew defendant's blood at approximately 8:15 p.m. The blood test revealed a BAC reading of .345. Thus, the blood was drawn approximately one hour and fifteen ...