                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A14-0771

                                      State of Minnesota,
                                           Appellant,

                                              vs.

                                   Derek Lawrence Stavish,
                                        Respondent.

                                   Filed September 2, 2014
                                   Reversed and remanded
                                        Harten, Judge

                                Nicollet County District Court
                                   File No. 52-CR-12-439


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michelle M. Zehnder Fischer, Nicollet County Attorney, James P. Dunn, Assistant County
Attorney, St. Peter, Minnesota (for appellant)

Michael S. Gaarder, Pennington & Cherne PLLC, St. Cloud, Minnesota (for respondent)


         Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and Harten,

Judge.

                                       SYLLABUS

         When a police officer is responsible for procuring a blood sample from an individual

who has stated that he was the driver of a vehicle involved in a probable criminal vehicular




 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
homicide and who has already been transported to a hospital, exigent circumstances exist

that justify the police officer’s procuring the blood sample without a search warrant.

                                          OPINION

HARTEN, Judge

         Appellant State of Minnesota challenges the granting of respondent’s motion to

suppress the evidence obtained from a blood sample taken from him without a warrant.

Because we conclude that the exigent-circumstances exception to the warrant requirement

applies to the facts of this case, we reverse the grant of the motion to suppress and remand

to the district court for trial.

                                             FACTS

         At about 10:28 p.m. on 18 June 2012, law-enforcement agencies and an ambulance

were summoned to the site of a one-vehicle rollover crash in Nicollet County. When they

arrived, they saw a truck with numerous beer cans in and around it; a dead body later

identified as that of B.L.; and respondent Derek Stavish, who needed medical attention.

Respondent said that he had been driving, he was not sure how many people had been in the

truck, and he should not have been doing what he was doing.               Respondent was then

transported by ambulance to a New Ulm hospital about ten miles away, in Brown County.

          A state patrol sergeant arrived after the ambulance left. He was instructed to obtain

a blood sample from respondent and told that respondent was on his way to the New Ulm

hospital in Brown County and might be airlifted to a more distant trauma center.1 The

sergeant drove to the hospital, where he found respondent conscious and receiving care.

1
    In fact, respondent remained in the hospital to which he was taken after the crash.

                                                 2
Respondent told the sergeant that two or three other people had been in the truck when it

crashed. The sergeant noted that respondent smelled of alcohol and determined that there

was probable cause to suspect that respondent had committed criminal vehicular homicide.

At 11:18 p.m., the sergeant asked hospital staff to take a blood sample from respondent.

      The test of the sample showed respondent’s blood-alcohol count (BAC) to be .20.

Respondent was charged with three counts of criminal vehicular operation resulting in

death, two counts of fourth-degree driving while impaired, one count of reckless driving,

and one count of careless driving.

      About 10 months later, in April 2013, the Supreme Court released Missouri v.

McNeely, 133 S. Ct. 1552 (2013) (holding that metabolization of alcohol in the bloodstream

is not per se an exigent circumstance that justifies the warrantless taking of blood samples

and that exigency must be determined based on the totality of the circumstances).

Respondent then moved to suppress the evidence of his BAC, alleging that the blood sample

had been taken without a warrant in violation of McNeely.

      The district court suppressed the test result on the ground that the exigent-

circumstances exception to the warrant requirement did not apply. The state challenges the

suppression.2


2
   The state also challenges the district court’s alternative ground for suppressing the
evidence, i.e., its determination that the good-faith exception to the warrant requirement
does not apply because Minnesota has not recognized that exception. See State v. Brooks,
838 N.W.2d 563, 575 (Minn. 2013) (Stras, J., concurring) (noting that the Minnesota
Supreme Court “has yet to adopt the good-faith exception”). Because we conclude that the
exigent-circumstances exception to the warrant requirement applied, we do not reach the
issue of whether the sergeant was relying in good faith on existing Minnesota law when he
did not seek a warrant.

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                                               ISSUE

       Did the exigent-circumstances exception apply?

                                         ANALYSIS

       When the state appeals a pretrial evidentiary suppression order, it must first “clearly

and unequivocally show . . . that the [district] court’s order will have a critical impact on the

state’s ability to prosecute the defendant successfully . . . .” State v. Scott, 584 N.W.2d 412,

416 (Minn. 1998) (quotation omitted). The parties agree that the district court’s suppression

of the BAC evidence had a critical impact on the state’s ability to prosecute respondent.

“[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute

and the [district] court’s decision is a question of law, the reviewing court may

independently review the facts and determine, as a matter of law, whether the evidence need

be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

       “[I]n drunk-driving investigations, the natural dissipation of alcohol in the

bloodstream does not constitute an exigency in every case sufficient to justify conducting a

blood test without a warrant.” McNeely, 133 S. Ct. at 1568. The district court relied on this

language and determined that “the [s]tate [had] not carried its burden of proving the

existence of exigent circumstances that justified [the sergeant’s] ordering the blood draw

[from respondent] without a warrant.”          But McNeely does not hold that “the natural

dissipation of alcohol in the bloodstream” is never an exigent circumstance; it rather holds

“that exigency in [the drunk-driving] context must be determined case by case based on the

totality of the circumstances.” Id. at 1556.




                                                 4
       Moreover, McNeely is factually distinguishable.       It did not involve a probable

criminal vehicular homicide or any damage to persons or property. “[U]nquestionably a

routine DWI case,” McNeely concerned a driver who was stopped, appeared intoxicated,

admitted consuming alcohol, and refused to provide a breath sample or a blood sample; “no

factors other than the natural dissipation of blood-alcohol suggested that there was an

emergency.” Id. at 1556-57. But “the [s]tate [sought] a per se rule for blood testing in

drunk-driving cases . . . contend[ing] that . . . exigent circumstances will necessarily exist

because BAC evidence is inherently evanescent.” Id. at 1560. The Supreme Court declined

to establish a per se rule or to “depart from careful case-by-case assessment of exigency,”

noting that “some circumstances will make obtaining a warrant impractical such that the

dissipation of alcohol from the bloodstream will support an exigency justifying a properly

conducted warrantless blood test.” Id. at 1561.

       Here, the sergeant was faced with a probable criminal vehicular homicide in one

county, a probable perpetrator in need of medical treatment who had been transported to a

hospital in another county, and the possibility that the perpetrator would be airlifted to a

trauma center in a third county. Because BAC must be measured within two hours of the

time of driving, see Minn. Stat. § 169A.20, subd. 1(5) (2012), and because the medical

treatment respondent would receive at the hospital could affect or invalidate his BAC, the

sergeant was under time pressure to obtain respondent’s blood sample. He was finally able

to do so at 11:18 p.m., 50 minutes after law enforcement was first notified of the accident,

and thus more than 50 minutes after the time respondent was driving.




                                              5
      Moreover, the sergeant was attempting to obtain evidence essential to a probable

criminal vehicular homicide charge, not merely a DWI charge. “[I]f a peace officer has

probable cause to believe that the [driver] has violated section 609.21 (criminal vehicular

homicide . . .) a test may be required and obtained despite the [driver’s] refusal.” Minn.

Stat. § 169A.52, subd. 1 (2012). “[A]n important factor to be considered when determining

whether any exigency exists is the gravity of the underlying offense for which the arrest is

being made.” Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S. Ct. 2091, 2099 (1984). The

gravity of the DWI in McNeely was far less than the gravity of the criminal vehicular

homicide here. Unlike the situation in McNeely, several significant factors together with the

inherent evanescence of BAC evidence indicate that exigent circumstances existed to

procure a sample of respondent’s blood without a warrant.

                                      DECISION

      Because other significant factors and the inherent evanescence of BAC evidence

indicate that exigent circumstances existed for the warrantless taking of respondent’s blood

sample, we reverse the suppression of the BAC evidence and remand for trial.

      Reversed and remanded.




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