                        NOT FOR PUBLICATION WITHOUT THE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-4804-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WILLIAM SMIEJAN,

        Defendant-Appellant.


              Argued February 1, 2017 – Decided           April 24, 2017

              Before Judges Alvarez and Manahan.

              On appeal from the Superior Court of New
              Jersey, Law Division, Hudson County, Municipal
              Appeal No. 04-14.

              Brian J. Neary argued the cause for appellant
              (Law Offices of Brian J. Neary, attorneys; Mr.
              Neary, of counsel and on the brief; Suzanne
              Axel, on the brief).

              Kerry J. Salkin, Assistant Prosecutor, argued
              the cause for respondent (Esther Suarez,
              Hudson County Prosecutor, attorney; Ms.
              Salkin, on the brief).

PER CURIAM

        On March 12, 2014, defendant William Smiejan, entered a guilty

plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, after
the municipal court denied his motion to suppress his blood alcohol

content (BAC) results.           That decision was affirmed by a Law

Division judge on May 18, 2015.           We now reverse and remand.

       On April 17, 2013, the United States Supreme Court decided

Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d

696 (2013).       The case stands for the proposition that "in drunk-

driving investigations, the natural dissipation of alcohol in the

blood    stream    does   not   constitute   an    exigency   in   every    case

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

Id. at ___, 133 S. Ct. at 1568, 185 L. Ed. 2d at 715.

       In State v. Adkins, 221 N.J. 300 (2015), our Supreme Court

held    "that   McNeely's   pronouncement     on   the   Fourth    Amendment's

requirements must apply retroactively to cases that were in the

pipeline when McNeely was issued."                Id. at 303.       The Court

explained that although the potential dissipation of alcohol in

the blood as a result of the body's processing of the chemical

over time "may be given substantial weight as a factor to be

considered in the totality of the circumstances[,]" it is only one

of many considerations regarding exigencies that may justify a

blood draw in the absence of consent or a search warrant.                  Ibid.

The Court remanded the case for the municipal court to take

testimony and render a decision on the issue of exigency.               Id. at

317.

                                      2                                A-4804-14T3
     It is undisputed that on January 16, 2013, in the middle of

the afternoon on a weekday, defendant was involved in an accident

in which he struck two parked cars.        He was taken to the hospital

with lacerations to the face and a bloody nose.           A sample of his

blood    was   taken   without   his   consent   or   a   search   warrant.

Subsequent testing established his BAC at 0.286 percent.

     Defendant suffers from a variety of physical and mental health

ailments related to a workplace explosion that occurred many years

prior.    As a result of these conditions, his municipal court

attorney, who has since been disbarred, argued on sentencing that

he should be placed on a bracelet program.            The municipal court

judge correctly denied the application since it is black-letter

law that alternatives to incarceration are not available by way

of sentence on a DWI conviction.

     The municipal court judge also reasoned that despite the

McNeely decision, exigent circumstances existed because of the

delays inherent in the warrant application process.                The only

evidence the court reviewed at the suppression hearing was police

and medical reports.       No testimony was taken.        The court heard

argument and considered briefs filed by counsel.             Although the

judge agreed that McNeely applied because this case was already

in the pipeline, he held that "knowing what the process in New



                                       3                            A-4804-14T3
Jersey is or, frankly, in Hudson County in New Jersey[,]" exigency

existed.

     In her May 18, 2015 written decision, the Law Division judge

on the de novo appeal agreed.        See R. 3:23-8.   She echoed the

municipal court judge's determination that the officers' actions

were reasonable given the difficulties inherent in the middle of

the afternoon in the middle of the week "for an officer to find

an assistant prosecutor, prepare a search warrant, and have a

judge sign off on the warrant [because it] would take a long enough

period of time to justify exigent circumstances."     She went on to

state that

                Issues surrounding the practicality of
           finding a prosecutor, and issuing telephonic
           warrants, were in this case, specific to the
           municipal court. The record reflects that the
           trial judge's own experience with such matters
           were weighed heavily in deciding whether there
           was exigency at the time [defendant]'s blood
           was drawn. Even if this [c]ourt might have
           reached a different conclusion, the trial
           court's findings should not be disturbed where
           they could have reasonably been reached on
           sufficient   credible    evidence.      Giving
           deference to those findings of the trial judge
           which are substantially influenced by his
           opportunity to have the "feel" of the case,
           this [c]ourt finds that the trial court did
           not err in denying [defendant]'s [m]otion to
           [s]uppress.




                                 4                           A-4804-14T3
     Now on appeal, defendant raises the following issues:

          POINT I
          THE FORCIBLE SEIZURE OF BLOOD SAMPLES FROM MR.
          SMIEJAN WITHOUT HIS CONSENT OR A SEARCH
          WARRANT VIOLATED THE FOURTH AMENDMENT TO THE
          UNITED STATES CONSTITUTION AND, ACCORDINGLY,
          SUCH EVIDENCE MUST BE SUPPRESSED.

          POINT II
          A PRE-McNEELY ANALYSIS      COMPELS    THAT     THE
          EVIDENCE BE SUPPRESSED.

          POINT III
          CONSIDERATIONS OTHER THAN McNEELY          COMPEL
          EXCLUSION OF THE BLOOD EVIDENCE.

          POINT IV
          THE COURT SHOULD PERMIT       MR.     SMIEJAN   TO
          WITHDRAW HIS GUILTY PLEA.

          POINT V
          MR. SMIEJAN'S CONVICTION MUST BE REVERSED
          BASED UPON INEFFECTIVE ASSISTANCE OF TRIAL
          COUNSEL.

     This case was in the pipeline when McNeely was decided.           We

thus address whether an adequate exigency existed excusing the

need to obtain consent or a search warrant.      We conclude that the

Law Division judge erred in relying upon the municipal court

judge's past experience as a factual basis to find the existence

of an adequate exigency.

     Speculation anchored on past experiences cannot rise to the

necessary threshold.   The only fact of which the judge properly

took judicial notice was the fast dissipation of alcohol from the

blood attributable to the passage of time.    See Adkins, supra, 221

                                5                               A-4804-14T3
N.J. at 316 (quoting State v. Dyal, 97 N.J. 229, 239-40 (1984))

("one crucial consideration is that the body eliminates alcohol

at a rapid rate").    In this case, there were no meaningful factual

findings made by either the municipal court judge or the Law

Division judge.      From that insufficient basis both judges drew

their legal conclusions, to which we owe no deference.       See State

v. Watts, 223 N.J. 503, 516 (2015); State v. Vargas, 213 N.J. 301,

327 (2013).

     The heart of McNeely is that the natural metabolization of

alcohol in the blood does not create a per se exigency for all

drunk-driving cases.      The "exigency in this context must be

determined    case-by-case    based   on    the   totality    of    the

circumstances."   McNeely, supra, ___ U.S. at ___, 133 S. Ct. at

1556, 185 L. Ed. 2d at 702.     In those cases in which an officer

can reasonably obtain either a warrant or a consent "without

significantly undermining the efficacy of the search, the Fourth

Amendment mandates that they do so."       Id. at ___, 133 S. Ct. at

1561, 185 L. Ed. 2d at 707.     "[R]eviewing courts [must] focus on

the objective exigency of the circumstances that the officer faced

in this situation."    Adkins, supra, 221 N.J. at 317.   Accordingly,

a remand is necessary for a hearing as to whether the circumstances

warranted the admission of the blood draw in this case.



                                  6                            A-4804-14T3
    Reversed and remanded for further proceedings consistent with

this opinion.




                               7                          A-4804-14T3
