Resubmitted May 12, 2015.
Approved for Publication June 23, 2015.
Submitted April 1, 2014. Decided July 29, 2014.
Remanded by Supreme Court May 12, 2015.
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 Office of Michael W. Kahn, P.C., and Brenner Brenner & Spiller, attorneys for respondent ( Michael W. Kahn and Fletcher C. Duddy, on the brief).
Before FISHER, ESPINOSA and KOBLITZ
[441 N.J.Super. 318] ESPINOSA, J.A.D.
In Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), the United States Supreme Court considered 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.
In this case, we granted leave to the State to appeal from an order that suppressed the results obtained from a blood sample taken from a drunk driving suspect without a warrant. The facts of the case are set forth in our opinion. State v. Jones, 437 N.J.Super. 68, 96 A.3d 297 (App.Div. 2014).
At the time of our decision, our Supreme Court had not yet determined whether the
rule announced in McNeely would be enforced retroactively in New Jersey. Although another panel of this court had determined that McNeely should not be applied retroactively, State v. Adkins, 433 N.J.Super. 479, 484-85, 81 A.3d 680 (App.Div. 2013), rev'd and remanded, 221 N.J. 300, 113 A.3d 734 (2015), we found it unnecessary for us to determine the retroactivity issue. Jones, supra, 437 N.J.Super. at 77-78, 96 A.3d 297. We reviewed the United States Supreme Court's [441 N.J.Super. 319] analysis in McNeely and discussion of its holding in Schmerber v. California, 384 U.S. 757, 771-72, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908, 920 (1966) and concluded " the ...