                                NOT FOR PUBLICATION WITHOUT THE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-0342-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL DELMEIER,

     Defendant-Appellant.
_____________________________

                    Submitted October 8, 2019 – Decided November 14, 2019

                    Before Judges Yannotti and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Municipal Appeal No.18-
                    009.

                    Theodore P. Sliwinski, attorney for appellant.

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Monica Lucinda
                    do Outeiro, Assistant Prosecutor, of counsel and on the
                    brief).

PER CURIAM
      Defendant appeals from an order of the Law Division dated August 24,

2018, which rejected his challenge to an order of the municipal court denying

post-conviction relief (PCR). We affirm.

      On July 3, 2008, defendant was riding a motorcycle and collided with a

vehicle that was stopped in traffic in Middletown. When Middletown Police

Officer Antonio Ciccone responded to the scene, defendant was leaning against

his motorcycle and bleeding from a laceration on his forehead. According to

Ciccone, the vehicle's rear windshield was "busted out."     There were four

individuals in the car, including a nine-year-old child who was crying and

claimed he was injured. The officer requested an ambulance for the child and

then approached defendant.

      Ciccone spoke with defendant and detected a strong odor of alcohol. The

officer said defendant's eyes were droopy, bloodshot, and watery. When the

officer asked defendant if he had consumed any alcohol, he stated, "[N]ot even

close to enough." Defendant slurred his words. Ciccone continued to question

defendant and then reviewed his license, registration, and insurance card.

Defendant refused to answer any additional questions regarding his alcohol

intake. He showed difficulty standing and dropped his cellphone twice while

handing the officer his credentials.


                                                                      A-0342-18T4
                                       2
      Ciccone asked defendant to perform field sobriety tests, but defendant

refused to cooperate. He also refused to provide a breath sample. Ciccone

placed defendant in handcuffs and told him he was under arrest for driving while

intoxicated (DWI). Emergency medical personnel arrived on the scene and

tended to the injured child.     They then examined defendant.       Thereafter,

defendant asked to be taken to a hospital. Ciccone removed the handcuffs and

placed defendant in the back of the ambulance.        The officer followed the

ambulance to the hospital.

      At the hospital, Ciccone told defendant a hospital employee would be

taking samples of his blood to send for alcohol screening. Again slurring his

words, defendant stated that he would not provide blood without counsel

present. After certain additional difficulties, hospital security guards strapped

defendant's wrists and ankles to the bed. Ciccone stayed with defendant the

entire time defendant was at the hospital.

      About ninety minutes later, Sergeant Bryan McKnight of the Middletown

Police Department arrived to assist the hospital staff with the blood draw. At

approximately 1:35 a.m., a nurse assistant told McKnight she would be taking

defendant's blood sample. The officer watched as the nurse assistant drew blood

from defendant's right forearm and place the vials of blood in an evidence box.


                                                                         A-0342-18T4
                                       3
Tests of the blood samples revealed defendant's blood-alcohol content was .20

percent.

      The officer issued summonses to defendant charging him with DWI in

violation of N.J.S.A. 39:4-50, and reckless driving in violation of

N.J.S.A. 39:4-96. Defendant's wife arrived and then left the hospital with

defendant. Ciccone returned to police headquarters with the blood samples. He

logged the evidence and placed the blood samples into the station's evidence

refrigerator.

      On June 10, 2009, defendant pled guilty to DWI, and the State agreed to

dismiss the reckless driving summons.        The municipal court judge then

sentenced defendant as a first offender under N.J.S.A. 39:4-50(a)(3) because his

previous DWI conviction occurred more than twenty years earlier. The judge

suspended defendant's license for seven months and imposed mandatory fines

and penalties. Defendant did not file a direct appeal.

      On November 6, 2017, defendant filed a petition for PCR. On February

22, 2018, the municipal court judge denied the petition, finding that defendant

had not presented any evidence to support relaxation of the requirement that a

PCR petition must be filed within five years, or to vacate his conviction.




                                                                         A-0342-18T4
                                       4
     On March 7, 2018, defendant appealed to the Law Division seeking de

novo review of the municipal court's judgment. Judge Paul X. Escandon heard

oral argument and placed his decision on the record.       The judge found

defendant's petition was barred by Rule 7:10-2(b)(2), and memorialized his

decision in an order dated August 24, 2018. This appeal followed.

     On appeal, defendant argues:

           POINT ONE
           THE DEFENDANT'S PETITION FOR POST-
           CONVICTION RELIEF SHOULD HAVE BEEN
           GRANTED BY THE TRIAL COURT. MOREOVER,
           THERE WERE EXCEPTIONAL CIRCUMSTANCES
           THAT JUSTIFY RELAXING THE FIVE-YEAR TIME
           LIMIT AS REQUIRED BY RULE 3:22-12.

           POINT TWO
           THE DEFENDANT'S WARRANTLESS/FORCED
           BLOOD DRAW WAS ILLEGALLY OBTAINED
           AND IT SHOULD HAVE BEEN EXCLUDED
           PURSUANT TO MISSOURI v. McNEELY[, 569 U.S.
           141 (2013)].

           POINT THREE
           THE NEW JERSEY SUPREME COURT HOLDING
           OF STATE v. ADKINS[, 221 N.J. 300 (2015),]
           MANDATES THAT THE MISSOURI v. McNEELY
           HOLDING BE APPLIED RETROACTIVELY.

           POINT FOUR
           THE TRIAL COURT COMMITTED REVERSIBLE
           ERROR WHEN IT RULED THAT THE MISSOURI v.
           McNEELY [HOLDING] DID NOT APPLY
           RETROACTIVELY.

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                                      5
            POINT FIVE
            A REVIEW OF SEARCH AND SEIZURE CASE LAW
            MANDATES THAT THE DEFENDANT'S DWI
            CONVICTION BE REVERSED.

            POINT SIX
            THE RECENT CASE OF STATE v. ZUBER[, 227 N.J.
            422 (2017),] MANDATES THAT THIS COURT
            REVERSE THE TRIAL COURT'S RULING.

            POINT SEVEN
            A REVIEW OF THE CASE LAW MANDATES THAT
            THE MISSOURI v. McNEELY CASE BE APPLIED
            RETORACTIVELY TO THE DEFENDANT'S PRIOR
            DWI CONVICTION.

            POINT EIGHT
            A REVIEW OF THE FEDERAL JURISPRUDENCE
            MANDATES THAT THE DEFENDANT'S DWI
            CONVICTION BE REVERSED.

      We have carefully considered defendant's arguments and conclude they

are entirely without merit.       We affirm the court's order denying PCR

substantially for the reasons stated by Judge Escandon in his oral decision of

August 24, 2018. We add the following.

      Rule 7:10-2(b)(2) governs applications for PCR in the municipal court.

The rule provides that a petition for PCR, based on grounds other than an alleged

illegal sentence, "shall not be accepted for filing more than five years after entry

of the judgment of conviction or imposition of the sentence sought to be

attacked, unless it alleges facts showing that the delay was due to defendant's

                                                                            A-0342-18T4
                                         6
excusable neglect."     Ibid.   When determining whether "excusable neglect"

exists, a court "should consider the extent and cause of the delay, the prejudice

to the State, and the importance of the petitioner's claim in determining whether

there has been an 'injustice' sufficient to relax the time limits." State v. Norman,

405 N.J. Super. 149, 159 (App. Div. 2009) (citing State v. Afanador, 151 N.J.

41, 52 (1997)).

      Here, Judge Escandon correctly found that defendant's petition was barred

by Rule 7:10-2(b)(2). Defendant sought to challenge his conviction in June 2009

of DWI under N.J.S.A. 39:4-50. He did not, however, file his PCR petition until

November 6, 2017, which was beyond the five years required by Rule 7:10-

2(b)(2).

      Defendant argued the time-bar should be relaxed so that the court could

find that the warrantless draw of his blood was unlawful under Missouri v.

McNeely, 569 U.S. 141 (2013). The PCR court correctly found that McNeely

did not apply to defendant, and therefore defendant failed to establish "excusable

neglect" for his failure to file a timely petition.

      On appeal, defendant argues that the Law Division judge erred by refusing

to relax the time bar in Rule 7:10-2(b)(2). He also argues that McNeely should

be retroactively applied to his case. We disagree.


                                                                            A-0342-18T4
                                          7
      The Constitution of the United States and the New Jersey Constitution

guarantee the right to be free from unreasonable searches and seizures. U.S.

Const. amend. IV; N.J. Const. art I, ¶ 7. The compelled intrusion into the body

for the purpose of drawing blood to determine its alcohol content is a se arch

under the Fourth Amendment to the United States Constitution. Schmerber v.

California, 384 U.S. 757, 768 (1966).

      "Warrantless searches are 'prohibited unless they fall within a recognized

exception to the warrant requirement.'" State v. Adkins, 221 N.J. 300, 310

(2015) (quoting State v. Pena-Flores, 198 N.J. 6, 18 (2009)). One exception to

the warrant requirement is the presence of exigent circumstances. Ibid. (citing

State v. Johnson, 193 N.J. 528, 552 (2008)). In Schmerber, the Court found that

the warrantless blood draw of the suspect in that case was permissible, noting

that the officer

             might 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[.] We are told that the
             percentage of alcohol in the blood begins to diminish
             shortly after drinking stops, as the body functions to
             eliminate it from the system. Particularly in a case
             such as this, where time had to be taken to bring the
             accused to a hospital and to investigate the scene of the
             accident, there was not time to seek out a magistrate
             and secure a warrant. Given these special facts, we
             conclude that the attempt to secure evidence of blood-

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                                        8
               alcohol content in this case was an appropriate incident
               to petitioner's arrest.

               [Schmerber, 384 U.S. at 770-71.]

      Thereafter, the courts disagreed as to whether in Schmerber the United

States Supreme Court had established that dissipation of alcohol created a per

se exigency justifying a warrantless draw of blood in every case where a driver

is suspected of driving under the influence. Adkins, 221 N.J. at 310-11. The

Supreme Court resolved that split of authority in McNeely. Id. at 311. The

Court held Schmerber did not create a per se rule, and instead applied a totality-

of-the-circumstances test. Ibid. (citing McNeely, 569 U.S. at 150).

      The McNeely Court held that in determining whether an exigency exists

that would permit the warrantless taking of blood, the court must consider the

totality of the circumstances. McNeely, 569 U.S. at 145. The McNeely Court

stated that:

               while the natural dissipation of alcohol in the blood
               may support a finding of exigency in a specific case, as
               it did in Schmerber, it does not do so categorically.
               Whether a warrantless blood test of a drunk-driving
               suspect is reasonable must be determined case by case
               based on the totality of the circumstances.

               [Id. at 156.]




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                                          9
      In Adkins, our Supreme Court held that McNeely applied retroactively to

cases that were in the "pipeline" on April 17, 2013, when the Court issued its

opinion in McNeely. Adkins, 221 N.J. at 304, 313. The Court explained that

when a new rule of law is announced, it may be applied retroactively to all cases

"pending on direct review or not yet final, with no exception for cases in which

the new rule constitutes a 'clear break' with the past." Id. at 312 (quoting State

v. Wessells, 209 N.J. 395, 412 (2012), and Griffith v. Kentucky, 479 U.S. 314,

328 (1987)).

      Here, Judge Escandon correctly found defendant's case was not in the

"pipeline" when McNeely was decided. The record shows that defendant pled

guilty and was sentenced in June 2009. He did not file a direct appeal. The

Court issued its decision in McNeely in April 2013, nearly four years later. The

judge found that McNeely cannot be retroactively applied to defendant's case.

We agree.

      Defendant argues that notwithstanding Adkins, we should apply McNeely

in this case. He contends that if there is a "major" change in the criminal law,

it is generally applied retroactively. He asserts that search and seizure law

requires that his conviction be reversed. He further argues that State v. Zuber,

227 N.J. 422 (2017), requires reversal of the Law Division's judgment in this


                                                                          A-0342-18T4
                                       10
matter. He contends other case law supports retroactive application of McNeely

here.

        We are convinced that defendant's arguments lack sufficient merit to

warrant discussion in a written opinion.   R. 2:11-3(e)(2). Notwithstanding

defendant's arguments to the contrary, McNeely does not apply to his

conviction. Adkins, 221 N.J. at 304, 313. His case was not in the "pipeline"

when McNeely was decided. The court correctly found that defendant was not

entitled to PCR.

        Affirmed.




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                                     11
